UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


A  TEEATISE 


ON 


BILLS  OF  EXCEPTIONS 

AND 

STATEMENTS  ey  FACTS 

BASED    UPON    THE    Sjjtn/TES    OF    THE    STATE    OF 

WASHINGTON^fcffi   fHE   DECISIONS  OF   THE 

(fSyBMjftE   COURT    OF    THE    ST^TE    OF 

,    INCLUDING 
VOLUME  65 '"'    '  '"' 


BY 


WILLIAM  HUDSOM'^MILEY 

Of  the  Spokane  lia?    •     I*  •  J 

•          *  9  '      J 


SAN  FEANCISCO 

BANCROFT-WHITNEY  COMPANY 
1912 


COPYRIGHT,  1912 

BY 

HUDSON  SMILEY 


SAN  FRANCISCO 

THE  FILMER  BROTHERS  ELECTROTYPE  COMPANY 
TYPOGRAPHERS  AND  STEREOTYPERS 


11G2?   Withdrawn 

PEEFACE. 


This  work,  which  has  been  the  delightful  companion  of 
the  author  during  his  leisure  hours,  is  now  submitted  to  the 
careful  consideration  of  a  generous  and  candid  profession, 
with  the  hope  that  it  will  prove  to  be  an  interesting  and  use- 
ful treatise.  The  subject  of  which  it  treats  is  perhaps  the 
most  complex  and  beautiful  of  all  subjects  relating  to  appel- 
late practice  and  procedure;  and  if  the  reader  shall  derive 
from  a  careful  perusal  of  ^he^vork  a  benefit  which  is  reason- 
ably proportionate  to  {he  pleaBifre  derived  from  its  composi- 

^-^  fXt   <_ 

•  tion,  the  author  will  indeed  be  gratified.     A  clear  presentation 
of  a  difficult  subject  necessitates  at  times  a  critical  analysis 
of  the  statutes  and  decisions;  and  whenever  this  has  been 

found  to  be  necessary,  it  has  been  made  in  the  kindliest  spirit, 
^*o\ 

*  even  though  the  true  spirit  may  occasionally  be  shadowed  by 

the  form  of  presentation  which  a  forceful  solution  of  an  in- 
tricate problem  required. 

To  Mr.  Justice  Rudkin,  formerly  chief  justice  of  the 
supreme  court  of  the  state  of  Washington,  and  now  judge  of 
the  federal  court  for  the  eastern  district  of  Washington,  who 
has  very  kindly  devoted  his  leisure  time  to  a  critical  examina- 
tion of  the  work,  the  author  is  indebted  for  several  very 
valuable  suggestions,  and  desires  to  take  this  opportunity  of 
expressing  his  appreciation  of  the  kindness  conferred. 

Continued  reflection  has  convinced  the  author  that  the 
statutes  of  the  state  of  Washington  relating  to  appellate 
practice  and  procedure  are,  with  the  exception  of  a  few 
trifling  blemishes,  models  of  perfection,  which  slight  and 
transient  reasons  should  not  be  permitted  to  repeal  or  materi- 


IV  PREFACE. 

ally  alter,  for  the  beautiful  principles  which  they  embody 
are  gradually  being  applied  by  the  court  as  at  present  con- 
stituted with  more  accuracy  and  precision  than  was  formerly 
the  case,  and  a  most  admirable  system  of  appellate  practice 
and  procedure  is  consequently  fast  becoming  firmly  estab- 
lished. 
Spokane,  Washington,  June,  1912. 

WILLIAM  HUDSON  SMILEY. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

DIVISIONS  OF  THE   SUBJECT— STATUTORY 
PROVISIONS. 

§     1.  Divisions  of  the  Subject. 

§     2.  Exceptions — Definition  of  Exception. 

§     3.  When  to  be  Taken. 

§     4.  Manner  of  Taking  in  Cases  Tried  by  Court. 

§     5.  Manner  of  Taking  in  Jury  Cases. 

§     6.  How  Entered  in  Minutes. 

§     7.  Manner  of  Taking  and  Entry. 

§     8.  Review  on  Appeal. 

§     9.  Bill  of  Exceptions — What  Constitutes.     Statement  of 

Facts — What  Constitutes. 

§  10.  Amendments1 — Notice   of   Application   to   Settle   and 

Certify. 

§  11.  How  Written  Evidence  Certified. 

§  12.  Certificate,  What  to  Contain — How  Signed. 

§/13.  How  Certified  upon  Change  or  Death  of  Judge. 

§  14.  When  to  be  Filed— Effect  of  Irregularity. 

§  15.  Return  of  Copy  of  Bill  or  Statement — Extension  of 

Time  for  Brief. 

§  16.  What  Shall  be  Part  of  Record. 

§  17.  How  Certified  When  Cases  Consolidated. 

§  18.  Construction  of  Chapter. 

§  19.  Judgment-roll — What  Constitutes. 

§  20.  Appeals  to  the  Supreme  Court — Time  of  Taking. 

§  21.  Record    on    Appeal — What    Constitutes — Duties    of 

Clerk. 

§  22.  Time  for  Filing  and  Serving  Briefs  on  Appeal. 

§  23.  Jurisdiction — Effect  of  Appeal  upon. 

§  24.  Calendar — How  Prepared. 


VI  TABLE  OP  CONTENTS. 

§  25.  Motion  to  Dismiss  Appeal. 

§  26.  Hearing  and  Disposition  of  Motion. 

§  27.  What  may  be  Reviewed. 

§  28.  Costs  on  Appeal. 

§  29.  Rules  and  Regulations  of  the  Supreme  Court. 

§  30.  Statutory  Method  of  Appealing  Exclusive. 

§  31.  Manner  of  Conducting  Trials — Charging  Jury. 

§  32.  Powers  of  Judge  in  Other  Counties  of  His  District. 

§  33.  Decisions  and  Rulings  Out  of  His  Own  District. 


CHAPTER  II. 
RULES  OF  THE  SUPREME  COURT. 

§  34.  Transcripts. 

§  35.  Contents  and  Style  of  Briefs. 

§  36.  Errors  Considered. 

§  37.  Service  of  Papers. 

§  38.  Service  of  Papers — Continued. 

§  39.  Service — Residence  Unknown.     Service  by  Mail. 

CHAPTER  III. 

THE  DISTINCTION  BETWEEN  A  BILL  OF  EXCEP- 
TIONS AND  A  STATEMENT  OF  FACTS. 

§  40.     The  Distinction  Between  Them. 

CHAPTER  IV. 
THE  PREPARATION  OF  THE  BILL  OR  STATEMENT. 

§  41.  Division  of  the  Subject. 

§  42.  The  Form  of  the  Bill  or  Statement. 

§  43.  By  Whom  the  Bill  or  Statement  may  be  Prepared. 

§  44.  What  must  be  Embodied  in  the  Bill  or  Statement. 

§  45.  The  Method   of  Embodying  Depositions  and   Other 

Written  Evidence  on  File. 

§  46.  What  must  not  be  Embodied  in  the  Bill  or  Statement. 

§  47.  Costs  of  the  Preparation  of  the  Bill  or  Statement. 


TABLE  OP   CONTENTS.  Vli 

• 

CHAPTER  V. 
THE  PROPOSAL  OF  THE  BILL  OB  STATEMENT. 

§  50.     Divisions  of  the  Subject. 

§  51.     The  Necessity  of  Filing  and   Serving  the  Proposed 

Bill  or  Statement. 

§  52.     The  Precedence  Which  must  be  Observed  and  Fol- 
lowed  in  the   Filing  and   Service  of  the   Bill  or 

Statement. 

§  53.     The  Proof  of  the  Filing. 
§  54.     The  Kinds  of  Service  Which  are  Provided  for  by 

Statute. 

§  55.     The  Meaning  of  the  Phrase  "Adverse  Party." 
§  56.     The  Meaning  of  the  Clause  "Any  Other  Party  Who 

has  Appeared  in  the  Cause. ' ' 
§  57.     The  Various  Methods  of  Serving  the  Proposed  Bill 

or  Statement. 
§  58.    Upon  Whom  It  is  Necessary  to  Serve  the  Proposed 

Bill  or  Statement. 

§  59.     Proof  of  Service  of  the  Proposed  Bill  or  Statement. 
§  60.     When  the  Proposed  Bill  or  Statement  must  be  Filed 

and  Served  in  the  Absence  of  Any  Extension  of 

Time. 
§  61.     The  Methods  of  Extending  the  Time  for  Filing  and 

Serving  the  Proposed  Bill  or  Statement. 
§  62.     The  Time  Within  Which  the  Proposed  Bill  or  State- 
ment must  be  Filed  and  Served  When  an  Extension 

has  Been  Granted. 
§  63.     The  Place  Where  the  Application  for  an  Extension  of 

Time  may  be  Heard. 
§  64.     The  Judge  Who  may  Make  the  Order  Extending  the 

Time,  and  to  Whom,  Therefore,  the  Application  may 

be  Made. 
§  65.     The  Place  Where  the  Order  Extending  the  Time  may 

be  Made. 
§  66.     When  the  Time  Within  Which  the  Proposed  Bill  or 

Statement  must  be  Filed  and  Served  Begins  to  Run. 


viii  TABLE   OF   CONTENTS. 

§  67.    How  the  Beginning  of  Such- Time  may  be  Postponed. 
§  68.     The  Method  of  Computing  the  Time  Within  Which 

the  Proposed  Bill  or  Statement  must  be  Filed  and 

Served. 


CHAPTER  VI. 

THE  PROPOSAL  OF  AMENDMENTS. 

§  69.    Divisions  of  the  Subject. 

§  70.     The  Character  of  the  Proposed  Amendments. 

§  71.  When  the  Proposed  Amendments  must  be  Filed  and 
Served. 

§  72.  The  Legal  Effect  of  a  Failure  to  File  and  Serve  the 
Proposed  Amendments  Within  the  Time  Prescribed 
by  Statute. 

§  73.  The  Precedence  Which  must  be  Observed  and  Followed 
in  the  Filing  and  Service  of  the  Proposed  Amend- 
ments. 

§  74.    The  Proof  of  Filing. 

§  75.     The  Kind  of  Service  Provided  for  by  Statute. 

§  76.  By  Whom  the  Proposed  Amendments  may  be  Filed 
and  Served. 

§  77.  The  Various  Methods  of  Serving  the  Proposed  Amend- 
ments. 

§  78.  Upon  Whom  It  is  Necessary  to  Serve  the  Proposed 
Amendments. 

§  79.     The  Proof  of  Service  of  the  Proposed  Amendments. 

§  80.  Whether  the  Time  Within  Which  the  Proposed 
Amendments  must  be  Filed  and  Served  can  be  Ex- 
tended. 

§  81.  When  the  Time  Within  Which  the  Proposed  Amend- 
ments must  be  Filed  and  Served  Begins  to  Run. 

§  82.  Whether  the  Beginning  of  Such  Time  may  be  Post- 
poned. 

§  83.  The  Method  of  Computing  the  Time  Within  Which 
the  Proposed  Amendments  must  be  Filed  and 
Served. 


TABLE  OP  CONTENTS.  IX 

§  84.    When  the  Proposed  Amendments  may  b'e  Accepted. 

§  85.     The  Methods  of  Accepting  the  Proposed  Amendments. 

§  86.  The  Methods  of  Proving  the  Acceptance  of  the  Pro- 
posed Amendments. 

§  87.  The  Legal  Effect  of  the  Acceptance  of  the  Proposed 
Amendments. 


CHAPTER  VII. 
THE  SETTLEMENT  OF  THE  BILL  OR  STATEMENT. 

§  88.     Divisions  of  the  Subject. 

§  89.  The  Distinction  Between  the  Settlement  and  the 
Certification  of  the  Bill  or  Statement. 

§  90.  The  Propriety  of  Considering  the  Settlement  of  the 
Bill  or  Statement  in  Connection  With  the  Certifica- 
tion. 

CHAPTER  VIII. 
THE  CERTIFICATION  OF  THE  BILL  OR  STATEMENT. 

§     91.     Divisions  of  the  Subject. 

§     92.    When  Notice  of  the  Settlement  and  Certification  is 

not  Required. 
§     93.     When  Notice  of  the  Settlement  and  Certification  is 

Necessary. 

§     94.     When  the  Notice  may  be  Given. 
§     95.     Who  may  Give  the  Notice. 
§     96.     Upon  Whom  the  Notice  must  be  Served. 
§     97.     The  Methods  of  Serving  the  Notice. 
§     98.     Proof  of  Service  of  the  Notice. 
§     99.     What  the  Notice  must  Contain. 
§  100.     The  Judge  to  Whom  the  Application  may  be  Made, 

and,  Therefore,  the  Judge  Whom  the  Notice  may 

Specify. 
§  101.    What  Notice  must  be  Given  of  the  Hearing  of  the 

Application   to    Settle    and    Certify   the   Bill   or 

Statement. 


X  TABLE  OF   CONTENTS. 

§  102.    The   Method   of   Computing   the   Time   Which   th« 

Notice  must  Give. 
§  103.     How  the  Time  of  the  Hearing  of  the  Application 

may  be  Postponed. 
§  104.     The  Place  Where  the  Hearing  may  be  Held,  and, 

Therefore,  the  Place  Which  the  Notice  may  Specify. 
§  105.     How  the  Place  of  the  Hearing  may  be  Changed. 
§  106.     When  a  New  Notice  must  be  Given. 
§  107.     When  the  Certification  may  be  Made. 
§  108.     Where  the  Certification  may  be  Made. 
§  109.     By  Whom  the  Certification  may  be  Made. 
§.110.     The  Number  of  Bills  of  Exceptions  and  Statements 

of  Facts  Which  may  be  Certified. 
§  111.     The  Meaning  of  the  Phrase  "Final  Judgment  in  the 

Cause"  When  Employed  With  Reference  to  the 

Number  of  Bills  of  Exceptions  and  Statements  of 

Facts  Which  may  be  Certified. 
§  112.     The  Form  of  the  Certificate. 
§  113.     Whether  the  Prescribed  Form  of  the  Certificate  may 

be  Changed  or  Varied  for  Any  Purpose  Whatever. 
§  114.     When  the  Judge  may  Correct  or  Supplement  His 

Certificate. 
§  115.     What  is  Meant  by  the  Correction  or  Supplementing 

of  the  Certificate. 

§  116.     Whether  Supplemental  Bills  of  Exceptions  or  State- 
ments of  Facts  are  Permitted. 
§  117.     The  Remedies  to  Which  a  Complaining  Party  may 

Resort. 

§  118.  The  Remedy  of  Mandamus. 
§  119.  The  Remedy  of  Prohibition. 
§  120.  Motions  Made  to  the  Supreme  Court  in  the  First 

Instance,    and   Based   upon   Various   Grounds,   to 

Strike  the  Bill  or  Statement  from  the  Cause. 


TABLE  OF   CONTENTS.  H 

CHAPTER  IX. 
THE  LEGAL  EFFECT  OF  THE  BILL  OR  STATEMENT. 

§  121.     Definitions — Divisions  of  the  Subject. 

§  122.  The  Bill  or  Statement  When  Duly  Certified  Becomes 
an  Inseparable  Part  of  the  Record. 

§  123.  The  Bill  or  Statement  When  Duly  Certified  Becomes 
an  Absolute  Verity. 

§  124.  Those  Rules  Which  Spring  into  Existence  When  the 
Bill  or  Statement  Becomes  a  Part  of  the  Record, 
the  Nonobservance  of  Which  will  Enlarge  the 
Time  Prescribed  by  Statute  for  the  Service  and 
Filing  of  the  Briefs  on  Appeal. 


TABLE  OF  CASES  CITED. 


A 

SECTION 

Adams  v.  Columbia  Canal  Co.,  51  Wash.  297,  98  Pac.  741 44,  109 

Agassiz  v.  Kelleher,  11  Wash.  88,  39  Pac.  228 67 

Alf  stad's  Estate,  In  re,  27  Wash.  175,  67  Pac.  593 44 

All«n  v.  Baxter,  42  Wash.  434,  85  Pac.  26 44 

American  Asphalt  Co.  v.  Gribble,  8  Wash.  255,  35  Pac.  1098 104 

Ames  T.  Farmers  &  Mechanics'  Bank,  48  Wash.  328,  93  Pac.  530 

44 

Anderson  v.  McGregor,  36  Wash.  124,  78  Pac.  776 44 

Anderson  T.  Northern  Pacific  By.  Co.,  19  Wash.  340,  53  Pac.  345 

118 

Anderson  v.  Provident  Life  &  Trust  Co.,  26  Wash.  192,  66  Pac. 

415 109 

Anderson  v.  State,  2  Wash.  183,  26  Pac.  267 44 

Armstrong  v.  Van  De  Vanter,  21  Wash.  682,  59  Pac.  510 44 

Asher  v.  Sekof sky,  10  Wash.  379,  38  Pac.  1133 46 


B 

Bailey  v.  Seattle  etc.  Ey.  Co.,  31  Wash.  685,  71  Pac.  1134 124 

Baker  v.  Washington  Iron  Works  Co.,  11  Wash.  335,  39  Pac.  642. .  60 

Ballard  v.  Mitchell,  38  Wash.  239,  80  Pac.  440 44 

Bank  of  Shelton  v.  Willey,  7  Wash.  535,  35  Pac.  411 53,  68,  102,  112 

Barkley  v.  Barton,  15  Wash.  33,  45  Pac.  654 52,  60 

Bartelt  v.  Seehorn,  25  Wash.  261,  65  Pac.  185 44 

Bartlett  v.  Eeichenecker,  6  Wash.  168,  32  Pac.  1062 94,  107 

Barto  v.  Stanley,  36  Wash.  150,  78  Pac.  791 44 

Bash  v.  Culver  Gold  Min.  Co.,  7  Wash.  122,  34  Pac.  462 44,  46 

Beckman  v.  Brommer,  57  Wash.  436,  107  Pac.  190 56 

Bennett  v.  Supreme  Tent  of  the  Knights  of  Maccabees  of  the 

World,  40  Wash.  431,  2  L.  B.  A.,  N.  S.,  389,  82  Pac.  744 57 

Bently  v.  Port  Townsend  Hotel  &  Improvement  Co.,  6  Wash.  296, 

32  Pac.  1072 44,94 

Bernier  v.  Bernier,  17  Wash.  689,  50  Pac.  495 44 

Blackwell  v.  McLean,  9  Wash.  301,  37  Pac.  317 44 

(xiii) 


Xiv  TABLE  OP   CASES  CITED. 

SECTION 

Bloom  v.  Bloom,  57  Wash.  23,  135  Am.  St.  Eep.  965,  106  Pac. 

197 48 

Bowen  v.  Cain,  7  Wash.  469,  35  Pac.  369 57,  59 

Bowen  v.  Hughes,  5  Wash.  442,  32  Pac.  98 66 

Boyer  v.  Boyer,  4  Wash.  80,  29  Pac.  981 94,  101,  106,  113,  114 

Boyle  v.  Great  Northern  By.  Co.,  13  Wash.  383,  43  Pac.  344. . .  .52,  53 

Braely  v.   Marks,   13  Wash.   224,   43   Pac.   27 66 

Brandenstein  v.   Way,  17  Wash.  293,  49  Pac.  511 46 

Bringgold  v.  Bringgold,  40  Wash.  121,  82  Pac.   179 42,  122 

Brown  T.  Forest,  1  Wash.  Ter.  201 46 

Brown  v.  Kern,  21   Wash.  211,  57   Pac.   798 46 

Brown  v.  Kinney,  48  Wash.  448,  93  Pac.  909 60 

Bruce  v.  Foley,  18  Wash.  96,  50  Pac.  935 46,  72,  92,  112 

Bruhn   T.   Steffins,   24   Wash.    Dec.    78,    119   Pac.    29 .55,   58 

Buchanan  v.  Laber,  39  Wash.  410,  81  Pac.  911 46 

Burrowg  v.  Kinsley,  27  Wash.  694,  68  Pac.  332 46 

Byers  T.  Bothschild,  11  Wash.  296,  39  Pac.  688 44 


0 

Cadwell  v.  First  National  Bank,  3  Wash.  188,  28  Pac.  365 

44,  94,  101,  102,  106,  123 

Cameron  v.  Burke,  61  Wash.  203,  112  Pac.  252 44 

Cantwell  v.  Nunn,  45  Wash.  536,  88  Pac.  1023 44 

Carpenter  v.  Barry,  26  Wash.  255,  66  Pac.  393 44 

Carstens  v.  Alaska  Steamship  Co.,  39  Wash.  229,  81  Pac.  691 44 

Carstens  T.  McEeavy,  1  Wash.  359,  25  Pac.  471 44 

Case  v.  Ham,  9  Wash.  54,  36  Pac.  1050 44,  51,  109,  112 

Caton  T.  Switzler,  3  Wash.  Ter.  242,  13  Pac.  712 93 

Caughey  v.  Bien,  37  Wash.  296,  79  Pac.  925 44,  112 

Chaney  v.  Chaney,  56  Wash.  145,  105  Pac.  229 44,  46 

Chapin  v.  Bokee,  4  Wash.  1,  29  Pac.  936 44,  45 

Chase  National  Bank  of  New  York  v.  Hastings,  20  Wash.  433, 

55  Pac.  574 48 

Chelan  County  v.  Navarre,  38  Wash.  684,  80  Pac.  845 44 

Chevalier  &  Co.  v.  Wilson,  30  Wash.  227,  70  Pac.  487 44,  46 

Chikott  T.  Globe  Navigation  Co.,  49  Wash.  302,  95  Pac.  264 67 

Christofferson  v.  Pfennig,  16  Wash.  491,  48  Pac.  264 113 

Clambey  v.  Copland,  52  Wash.  580,  100  Pac.  1031 44,  46 

Clark-Harrig  Co.  v.  Douthitt,  4  Wash.  465,  30  Pac.  744 112 

Clark-Harris  Co.  v.  Douthitt,  5  Wash.  96,  31  Pac.  422 114 

Clay  v.  Selah  Valley  Irr.  Co.,  14  Wash.  543,  45  Pac.  141 44,  46 

Coats  v.  West  Coast  Fire  &  Marine  Ins.  Co.,  4  Wash.  375,  30  Pac. 

404,   850 44,   100,    104,   106 


TABLE  OF   CASES  CITED.  XV 

SECTION 

Cogswell  T.  Hogan,  1  Wash.  4,  23  Pac.  835 67 

Cogswell  v.  West  Street  &  North  End  Electric  By.  Co.,  5  Wash. 

46,  31  Pac.  411 44,  92 

Cohen  v.  Drake,  13  Wash.  102,  42  Pac.  529 44 

Cole  v.  Price,  22  Wash.  18,  60  Pac.  153 44 

Collier  v.  Great  Northern  Ey.  Co.,  40  Wash.  639,  82  Pac.  935 44 

Collins  v.  Hoffman,  62  Wash.  278,  113  Pac.  625 40 

Collins  v.  Huffman,  48  Wash.  184,  93  Pac.  220 46 

Collins  v.  Seattle,  2  Wash.  Ter.  354,  7  Pac.  857 112 

Corbin  v.  McDermott,  33  Wash.  212,  74  Pae.  361 44 

Cornell  University  v.  Denny  Hotel  Co.,  15  Wash.  433,  46  Pac. 

654 57 

Costello  T.  Drainage  District  No.  1,  King  County,  44  Wash.  344, 

87  Pac.  513 46,  94,  106 

Coughlin  v.  Holmes,  53  Wash.  692,  102  Pac.  772 44 

Cowie  v.  Ahrenstedt,  1  Wash.  416,  25  Pac.  458 94 

Coyle  v.  Seattle  Electric  Co.,  31  Wash.  181,  71  Pac.  733 66 

Cozard  v.  Cozard,  48  Wash.  124,  92  Pac.  935 44 

Crane  v.  Dexter  Horton  &  Co.,  5  Wash.  479,  32  Pac.  223 44 

Crowe  &  Co.  v.  Brandt,  50  Wash.  499,  97  Pac.  503 122 

Crowley  v.  McDonough,  30  Wash.  57,  70  Pac.  261 60,  61 

Cunningham  v.  Lakin,  50  Wash.  394,  97  Pac.  447 44 

Cunningham  v.  Seattle  Electric  Ey.  &  Power  Co.,  3  Wash.  471, 

28  Pac.  745 46 

Cuschner  v.  Longbehn,  44  Wash.  546,  87  Pac.  817 93 


D 

Davies  v.  Cheadle,  31  Wash.  168,  71  Pac.  728 46 

Dawson  v.  Dawson,  40  Wash.  656,  82  Pac.  937 44 

Debenture  Corporation  v.  Warren,  9  Wash.  312,  37  Pac.  451 66 

Delaski  v.  Northwestern  Improvement  Co.,  61  Wash.  255,  112 

Pac.  341 42,  61,  68,  102 

Demaris  Y.  Barker,  33  Wash.  200,  74  Pac.  362 44,  45,  112 

De  Eoberts  v.  Stiles,  24  Wash.  611,  64  Pac.  695 57 

Dibble  v.  Seattle  Electric  Co.,  33  Wash.  596,  74  Pac.  807 44 

Dittenhoefer  v.  Coeur  d'Alene  Clothing  Co.,  4  Wash.  519,  30  Pac. 

660 93,113,122 

Dodds  v.  Gregson,  35  Wash.  402,  77  Pac.  791 

46,  61,  93,  94,  101,  106,  107 

Donison  v.  Spokane,  27  Wash.  317,  67  Pac.  561 66 

Douthitt  v.  MacCulsky,  11  Wash.  601,  40  Pac.  186 45 

Downs  v.  Board  of  Directors,  4  Wash.  309,  30  Pae.  147 59 


XVi  TABLE  OF   CASES  CITED. 

SECTION 

Downs  v.  Seattle  ft  Montana  By.  Co.,  5  Wash.  778,  32  Pac.  745, 

33  Pac.  973 44 

Downs  Farmers'  Warehouse  Assn.  T.  Pioneer  Mutual  Ins.  Assn., 

41  Wash.  372,  83  Pac.  423 65,  72,  92 

Doyle  T.  McLeod,  4  Wash.  732,  31  Pac.  96.  . .  .90,  103,  105,  112,  113,  118 

Driscoll  v.  Dufur,  45  Wash.  494,  88  Pac.  929 

57,  60,  61,  63,  65,  104,  105,  106 


E 

Eicholtz  v.  Holmes,  8  Wash.  297,  34  Pac.   151 114 

Elma  v.  Carney,  4  Wash.  418,  30  Pac.  732 46 

Emigh  v.  State  Ins.  Co.,  3  Wash.  122,  27  Pac.  1063 93 

Enos  v.  Wilcox,  3  Wash.  44,  28  Pac.  364 44,  46,  94,  109,  123 

Erickson  v.  Erickson,  11  Wash.  76,  39  Pae.  241 52 

Ewing  v.  Van  Wagenen,  6  Wash.  39,  32  Pac.  1009 46 

Exposition  Amusement  Co.  v.  Eaeco  Products  Co.,  55  Wash.  314, 

104  Pac.  509 46,  56 


P 

Fairfield  v.  Binnian,  13  Wash.  1,  42  Pac.  632 59 

Farnham's  Estate,  In  re,  41  Wash.  570,  84  Pac.  602 44 

Farr  v.  Bach,  13  Ind.  App.  125,  41  N.  E.  393 123 

Faulconer  v.  Warner,  2  Wash.  525,  27  Pac.  274 109 

Ferguson  v.  Hoshi,  25  Wash.  664,  66  Pac.  105 44 

Ferry  v.  King  County,  2  Wash.  337,  26  Pac.  537 44 

Fife  v.  Olson,  5  Wash.  789,  32  Pac.  766 44,  46 

First  National  Bank  of  Aberdeen  v.  Andrews,  11  Wash.  409,  39 

Pac.  672  58,8.9 

First  National  Bank  of  Seattle  v.  Coles,  40  Wash.  528,  82  Pac. 

892 46,  58 

Fisher  v.  Kirschberg,  17  Wash.  290,  49  Pac.  488 46 

Fisher  v.  Puget  Sound  Brick  etc.  Co.,  34  Wash.  578,  76  Pac.  107 

46,109 

Fitz  Henry  v.  Munter,  33  Wash.  629,  74  Pac.  1003 46 

Floding  v.  Denhqlm,  40  Wash.  463,  82  Pac.  736 94,  107 

Flood  v.  Libby,  38  Wash.  366,  107  Am.  St.  Rep.  851,  80  Pac.  533. .  46 

Fox  v.  Territory,  2  Wash.  Ter.  297,  5  Pac.  603 44 

Fox  v.  Utter,  6  Wash.  299,  33  Pac.  354 122 

Francioli  v.  Brue,  4  Wash.  124,  29  Pac.  928 44 

Fulton  v.  Methow  Trading  Co.,  45  Wash.  136,  88  Pac.  117 61 


TABLE  OF  CASES   CITED.  XV11 

SECTION 

G 

Gaffney  v.  Megrath,  11  Wash.  456,  39  Pac.  973 44 

Galler  v.  McMahon,  51  Wash.  473,  99  Pac.  309 57,  61,  113 

Gay  v.  Havermale,  30  Wash.  622,  71  Pac.  190 44 

Gehres  v.  Wallace,  38  Wash.  101,  80  Pac.  273 44 

Gilbranson  v.  Squier,  5  Wash.  99,  31  Pac.  423 44 

Gordon  v.  Nelson,  4  Wash.  817,  30  Pac.  647 109 

Gottstein  v.  Simmons,  59  Wash.  178,  109  Pac.  596 46 

Gould  v.  Austin,  52  Wash.  457,  100  Pae.  1029 44,  46,  66 

Graton  &  Knight  Mfg.  Co.  v.  Bedelsheimer,  28  Wash.  370,  68  Pae. 

879  109 

Gray  r.  Granger,  48  Wash.  442,  93  Pac.  912 44 

Gray  v.  Washington  Water  Power  Co.,  30  Wash.  154,  70  Pac.  255 

.  67 

Gray's  Harbor  Boom  Co.  v.  Lownsdale,  54  Wash.  83,  102  Pac.  1041, 

104  Pac.  267 109 

Greely  v.  Newcomb,  21  Wash.  357,  58  Pac.  216 42,  44,  61 

Griggs  v.  MacLean,  33  Wash.  244,  74  Pac.  360 44 

Gunderson  v.  Cochrane,  3  Wash.  476,  28  Pac.  1105 109 


H 

Haas  v.  Gaddis,  1  Wash.  89,  23  Pac.  1010. 103,  105,  113,  122,  123 

Haines  &  Spencer  v.  Kelley,  57  Wash.  219,  106  Pac.  776 44 

Hall  v.  Union  Central  Life  Ins.  Co.,  23  Wash.  610,  83  Am.  St. 

Eep.  844,  51  L.  R.  A.  288,  63  Pac.  505 44 

Hallam  v.  Tillinghast,  19  Wash.  20,  52  Pac.  329 64,  89,  100,  109 

Hannegan  v.  Both,  12  Wash.  65,  40  Pac.  636 122 

Hannon  v.  Millichamp,  40  Wash.  118,  82  Pac.  168 44 

Hansen  v.  Nilson,  17  Wash.  606,  50  Pac.  511 57,  58,  72,  92 

Hanson  v.  Tompkins,  2  Wash.  508,  27  Pac.  73 109 

Barker  v.  Crosby,  3  Wash.  377,  28  Pac.  745 44 

Harpel  v.  Harpel,  31  Wash.  295,  71  Pae.  1010 60,  61 

Harris  v.  Puget  Sound  Electric  Ry.  Co.,  50  Wash.  704,  97  Pac. 

728  5« 

Hartigan  v.  Territory,  1  Wash.  Ter.  447 44 

Healy  v.  Seward,  5  Wash.  319,  31  Pac.  874 44,  46 

Heffner  v.  Board  of  County  Commissioners  of  Snohomish  County, 

16  Wash.  273,  47  Pac.  430 44 

Hennessy  v.  Tacoma  Smelting  &  Refining  Co.,  33  Wash.  423,  74 

Pac.  584 67,  118 

Herrman  v.  Great  Northern  Ry.  Co.,  27  Wash.  472,  57  L.  R.  A. 

390,  68   Pac.   82 42 


TABLE   OP   CASES  CITED. 

SECTION 

Herzog  v.  Palatine  Ins.  Co.,  36  Wash.  611,  79  Pac.  287 67 

Hewitt  v.  Root,  31  Wash.  312,  71  Pac.  1021 68,  102 

Hill  v.  Gardner,  35  Wash.  529,  77  Pac.  808 59 

Hill  v.  Sawyer,  12  Wash.  658,  40  Pac.  414 46 

Hill  v.  Young,  7  Wash.  33,  34  Pac.  144 109 

Hill's  Heirs,  In  re,  7  Wash.  421,  35  Pac.  131 112,  116,  118 

Hoesc'hler  v.  Bascom,  44  Wash.  673,  87  Pac.  943 122 

Holburte's  Estate,  In  re,  38  Wash.  199,  80  Pac.  294 

44,  47,  114,  115,  118 

Holden  v.  Romano,  61  Wash.  458,  112  Pac.  489 46 

Holm  v.  Gilchrist,  7  Wash.  615,  34  Pac.  1102 112 

Home  Savings  &  Loan  Assn.  v.  Burton,  20  Wash.  688,  56  Pac.  940 

46,  57,  70,  72,  92 

Horr  v.  Aberdeen  Packing  Co.,  7  Wash.  354,  35  Pac.  125 57 

Horrell  v.  California  etc.  Homebuilders'  Assn.,  40  Wash.  531,  82 

Pac.  889  122 

Hoskins  v.  Barker,  33  Wash.  706,  74  Pac.  1135 44,  45 

Hotel  Company  v.  Merchants'  Ice  &  Fuel  Co.,  41  Wash.  620,  84 

Pac.  402 44,  61 

Howard  r.  Ross,  3  Wash.  292,  28  Pac.  528. 44,  46,  109 

Howard  v.  Shaw,  10  Wa»h.  151,  38  Pac.  746 46,  58 

Howe  v.  Kenyon,  4  Wash.  677,  30  Pac.  1058 118 

Huggins  v.  Sutherland,  39  Wash.  552,  82  Pac.  112 44 

Hume»  v.  Hillman,  39  Wash.  107,  80  Pac.  1104 46,  60,  61,  103,  104 


I 

Iversxm  v.  Bradrick,  54  Wash.  633,  104  Pac.  130 56 


J 

Jacobson  v.  Lunn,  16  Wash.  487,  48  Pac.  237 44 

Jefferson  County  v.  Trumbull,  31  Wash.  217,  71  Pac.  787 120,  124 

Jemo  Y.  Tourist  Hotel  Co.,  55  Wash.  595,  19  Ann.  Cas.  1199,  104 

Pae.  820  67 

Johnson  T.  Spokane,  29  Wash.  730,  70  Pac.  122 44 

Johnston  v.  Gerry,  34  Wash.  524,  76  Pac.  258,  77  Pac.  503 

46,  53,  59,  113,  122 

Jones  v.  Herrick,  33  Wash.  197,  74  Pac.  332 45,  60,  89 

Jones  v.  Jenkins,  3  Wash.  17,  27  Pac.  1022 40,  42,  43,  46,  115 

Jones  ft  Co.  v.  Spokane  Valley  Land  ft  Water  Co.,  44  Wash.  146, 

87   Pac.  65 46 


TABLE  OF  CASES  CITED.  XIX 

SECTION 

K 

Kane  v.  Kane,  35  Wash.  517,  77  Pae.  842 

44,  61,  85,  86,  103,  104,  112,  123 

Kane  v.  Miller,  43  Wash.  354,  86  Pac.  568 44 

Kellogg  v.  Bradley,  3  Wash.  429,  28  Pac.  367 112 

Kennedy  v.  Derrickson,  5  Wash.  289,  31  Pac.  766 94 

Kennedy  Drug  Company  v.  Keyes  Drug  Company,  58  Wash.  499, 

109  Pac.  56 44 

Kenyon  v.  Knipe,  3  Wash.  Ter.  243,  13  Pac.  759 94 

King  County  v.  Hill,  1  Wash.  63,  23  Pac.  926 46,  94,  105,  112 

Kirby  v.  Collins,  6  Wash.  297,  32  Pac.  1060 44,  112,  123 

Kroenert  v.  Gustason,  19  Wash.  373,  53  Pae.  340 104 

Kubillus  v.  Ewert,  40  Wash.  38,  82  Pac.  147 67,  68,  102 


L 

Lamona  v.  Cowley,  31  Wash.  297,  71  Pac.  1040 60 

Lauridsen  v.  Lewis,  47  Wash.  594,  92  Pac.  440 43,  67,  122 

Ledyard  v.  West  Street  &  North  End  Electric  Ry.  Co.,  5  Wash. 

64,    31    Pac.    417 102 

Lee  v.  Lee,  19  Wash.  355,  53  Pac.  349 43 

Lemman  v.  Spokane,  38  Wash.  98,  80  Pac.  280 46 

Likens  v.  Cain,  4  Wash.  307,  30  Pac.  80 44,  45 

Lilly  T.  Eklund,  37  Wash.  532,  79  Pac.  1107 122 

Linder  v.  Newman,  18  Wash.  481,  51  Pac.  1039 44 

Lindsay  T.  Scott,  56  Wash.  206,  105  Pac.  462 60,  66 

Link  v.  Boose,  5  Wash.  491,  31  Pac.  599 44 

Littlejohn  v.  Miller,  5  Wash.  399,  31  Pac.  758 104,  106,  107,  114 

Livesley  v.  Pier,  9  Wash.  658,  38  Pac.  156 46 

Loeper  v.  Loeper,  51  Wash.  682,  99  Pac.  1029 44 

Lohman  v.  Claussen,  55  Wash.  408,  104  Pac.  624 44 

Long  v.  Billings,  7  Wash.  267,  34  Pac.  936 46 

Loos  v.  Rondema,  10  Wash.  164,  38  Pac.  1012 62,  66,  11R 


M 

Madigan  T.  West  Coast  Fire  &   Marine  Ins.  Co.,  3  Wash.   454, 

28    Pac.    1027 46,  109 

Mahncke  v.  Mahncke,  43  Wash.  425,  86  Pac.  645 44 

Maitland  v.  Zanga,  14  Wash.  92,  44  Pac.  117 44 

Malfa  v.  Crisp,  52  Wash.   509,   100  Pac.   1012 44 

Maling  v.  Crummey,  5  Wash.  222,  31  Pac.  600 44 


XX  TABLE  OF   CASES  CITED. 

SECTION 

Maney  v.  Hart,  11  Wash.  67,  39  Pac.  268 72,  87,  92 

Mann  v.  Provident  Life  &  Trust  Co.,  42  Wash.  581,  85  Pac.  56 122 

Marsh  T.  Degeler,  3  Wash.  71,  27  Pac.  1073 107 

Marsh  v.  Wade,  3  Wash.  Ter.  477,  17  Pac.  886 105 

Martin  v.  Sunset  Telephone  &  Telegraph  Co.,  18  Wash.  260,  51 

Pac.  376 68,  102 

Mason  v.  McLean,  6  Wash.  31,  32  Pac.  1006 44 

Matheson  v.  Ward,  24  Wash.  407,  85  Am.  St.  Rep.  955,  64  Pac.  520 

65 

Medcalf  v.  Bush,  4  Wash.  386,  30  Pac.  325 42,  46,  89 

Mercer  v.  Lloyd  Transfer  Co.,  59  Wash.  560,  110  Pac.  389 67 

Merchants'  National  Bank  of  Seattle  v.  Ault,  14  Wash.  701,  44 

Pac.  129  104 

Meyer  v.  Boyer,  43  Wash.  368,  86  Pac.  661 44 

Michel  v.  White,  64  Wash.  341,  116  Pac.  860 66 

Michigan  Mfg.  Co.  v.  Saunders,  7  Wash.  302,  34  Pac.  1102 109 

Miller  v.  Vermurie,  7  Wash.  386,  34  Pac.  1108,  35  Pac.  600 40 

Miller  v.  Washington  Savings  Bank,  5  Wash.  200,  31  Pac.  712..  112 

Montesano  v.  Blair,  12  Wash.  188,  40  Pac.  731 122 

Mooney  v.  State,  2  Wash.  487,  28  Pac.  363 93 

Morgan  v.  Bankers'  Trust  Co.,  63  Wash.  476,  115  Pac.  1047 44 

Morgan  v.  Bankers'  Trust  Co.,  24  Wash.  Dec.  429,  119  Pac.  1116 

44 

Morse  v.  Ely,  21  Wash.  708,  61  Pac.  1135 45 

Murray  v.  Shoudy,  13  Wash.  33,  42  Pac.  631 42 

McAllister  v.  Territory,  1  Wash.  Ter.  360 44 

McBroom  &  Wilson  Co.  v.  Gandy,  18  Wash.  79,  50  Pac.  572 53 

McCart  v.  Eacine  Woolen  Mills,  48  Wash.  314,  93  Pae.  517 44 

McCarty  v.  Hayden,  4  Wash.  537,  30  Pac.  637 44,  109 

McDonald  v.  Downing,  52  Wash.  394,  100  Pac.  834 44 

McDonald  v.  Van  Houten,  59  Wash.  593,  110  Pac.  428 60 

McGlauflin  v.  Merriam,  7  Wash.  Ill,  34  Pac.  561 66,  106 

McGuire  v.  Bryant  Lumber  &  Shingle  Mill  Co.,  53  Wash.  425,  102 

Pac.  237  66 

Mclntosh  v.  Sawmill  Phoenix,  49  Wash.  152,  94  Pac.  930 46 

McKinnon  v.  Kingston  Land  &  Improvement  Co.,  4  Wash.  535,  30 

Pac.  642 44 

McNatt  v.  Harmon,  3  Wash.  432,  28  Pac.  748 44 

McNeilly  v.  McNeilly,  38  Wash.  401,  80  Pac.  541 44 

McQueston  v.  Merrill,  12  Wash.  335,  41  Pac.  56 60,  61 

McQuillan  v.  Seattle,  7  Wash.  331,  35  Pac.  68 60 

McReavy  v.  Eshelman,  4  Wash.  757,  31  Pac.  35 42,  123 


TABLE  OP  CASES  CITED.  Xxi 

SECTION 

N 

National  Bank  of  Commerce  of  Seattle  v.  Seattle  Pickle  &  Vin- 
egar Works,  15  Wash.  126,  45  Pac.  731 57 

National  Christian  Assn.  v.  Simpson,  21  Wash.  16,  56  Pac.  844..  66 

Nelson  v.  McLellan,  34  Wash.  181,  75  Pac.  635 47 

Nelson  v.  McPhee,  59  Wash.  103,  109  Pac.  305 46 

Nelson  v.  Seattle  Traction  Co.,  25  Wash.  602,  66  Pac.  61 44,  109 

Ness  v.  Bothell,  53  Wash.  27,  101  Pac.  702 112 

Nickeus  v.  Lewis  County,  23  Wash.  125,  62  Pac.  763 112,  123 

Nicol  v.  Skagit  Boom  Company,  12  Wash.  230,  40  Pac.  984 67 

Norf or  v.  Busby,  19  Wash.  450,  53  Pac.  715 44 

Northern  Pacific  Ey.  Co.  v.  Myers-Parr  Mill  Co.,  54  Wash.  447, 

103  Pac.  453 46 

Northern  Pacific  &  Puget  Sound  Shore  B.  E.  Co.  v.  Coleman,  3 

Wash.  228,  28  Pac.  514 109 

North   Star  Trading  Co.  v.  Alaska-Yukon-Pacifie  Exposition,  63 

Wash.  376,  115  Pac.  855 46,  113 

Nunu  v.  Jordan,  31  Wash.  506,  72  Pac.  124 44 


o 

O'Brien  v.  American  Casualty  Co.,  57  Wash.  598,  107  Pac.  519..     67 

O'Connor  v.  Enos,  56  Wash.  448,  105  Pac.  1039 46 

Oliver  v.  Dupe*,  16  Wash.  634,  48  Pac.  351 46 

Oliver  v.  Lewis,  9  Wash.  572,  38-  Pac.  139 94,  101 

O'Neile  v.  Ternes,  32  Wash.  528,  73  Pac.  692 45,  61,  72,  92 

Oregon  Eailway  &  Navigation  Co.  v.  Galliher,  2  Wash.  Ter.  70, 

3    Pac.    615 46 

Osburn  v.  Pioneer  Mutual  Ins.  Assn.,  36  Wash.  695,  79  Pac.  286. .     44 

Otis  Brothers  &  Co.  v.  Nash,  26  Wash.  39,  66  Pac.  Ill 66 

Owen  T.  Casey,  48  Wash.  673,  94  Pac.  473 62,  67,  118 


P 

Pack  v.  Peabody,  58  Wash.  76,  107  Pac.  839 44 

Parker  v.  Esch,  5  Wash.  296,  31  Pac.  754 42 

Pederson  v.  Ullrich,  50  Wash.  211,  96  Pac.  1044 46,  113,  122 

Pedigo  v.  Fuller,  37  Wash.  529,  79  Pac.  1129 67 

Pennsylvania  Mortgage   &  Investment   Co.  v.   Gilbert,   18  Wash. 

667,  52  Pac.  246 45 

Penter  v.  Staight  &  Beavers,  1  Wash.  365,  25  Pac.  469 93 

Perkins  v.  Jennings,  27  Wash.  145,  67  Pac.  590 68,  102 


Xill  TABLE  OF   CASES   CITED. 

SECTION 

Peters  v.  Lewis,  33  Wash.  617,  74  Pac.  815 122 

Peterson  v.  Johnson,  20  Wash.  497,  55  Pac.  932 46 

Philadelphia  Mortgage  &  Trust  Co.  v.  Palmer,  32  Wash.  455,  73 

Pac.  501  56 

Phillips  v.  Port  Townsend  Lodge  No.  6,  F.  &  A.  M.,  8  Wash.  529, 

36  Pac.  476 94,  107,  112 

Pierce  v.  Fawcett,  31  Wash.  271,  71  Pac.  1011 44 

Pierce  v.  Pierce,  52  Wash.  679,  101  Pac.  358 44 

Pincus  T.  Puget  Sound  Brewing  Co.,  18  Wash.  108,  50  Pac.  930. .  44 

Plumley  v.  Simpson,  31  Wash.  147,  71  Pac.  710 44 

POOP  v.  Cudihee,  37  Wash.  609,  79  Pac.  1105 44 

Port  Townsend  v.  Lewis,  34  Wash.  413,  75  Pac.  982 44 

Powell  v.  Nolan,  27  Wash.  318,  67  Pac.  712,  68  Pac.  389 112,  123 

Prospectors'  Development  Co.  v.  Brook,  31  Wash.  187,  71  Pac.  774 

63,  65,  94,  104,  105,  106,  107 

Prospectors'  Development  Co.  v.  Brook,  32  Wash.  315,  73  Pae.  376 

67 

Puget  Sound  Iron  Co.  v.  Worthington,  2  Wash.  Ter.  472,  7  Pac. 

882,  886   46,  114 


Q 

Quareles  v.  Seattle,  26  Wash.  226,  66  Pac.  389 66 


E 

Ramsdell  v.  Eamsdell,  47  Wash.  444,  92  Pac.  278 44 

Banahan  v.  Gibbons,  23  Wash.  255,  62  Pac.  773 46 

Bathbun  v.  Thurston  County,  2  Wash.  564,  27  Pac.  448 44 

Eauh  v.  Scholl,  19  Wash.  30,  52  Pac.  332 109 

Eehlow  v.  Schmitt,  63  Wash.  666,  116  Pac.  267 44 

Eehmke  v.  Fogarty,  57  Wash.  412,  107  Pac.  184 44 

Eeichenbach  v.  Sage,  8  Wash.  250,  35  Pac.  1081 46 

Eeilley  v.  Anderson,  33  Wash.  58,  73  Pac.  799 113 

Bemington  v.  Price,  13  Wash.  76,  42  Pac.  527 46 

Bice  v.  Pershall,  41  Wash.  73,  82  Pac.  1038 44 

Eice  Fisheries  Co.  v.  Pacific  Eealty  Co.,  35  Wash.  535,  77  Pac.  839 

44,67 

Eichardson  v.  Carbon  Hill  Coal  Co.,  10  Wash.  648,  39  Pac.  95 44 

Eichardson  v.  Eichardson,  43  Wash.  634,  86  Pac.  1069 44,  46 

Eobertson  Mortgage  Co.  v.  Thomas,  60  Wash.  514,  111  Pac.  795.  .56,  58 
Eobertson  Mortgage  Co.  v.  Thomas,  63  Wash.  316,  115  Pac.  312.  .56,  58 
Eogers  T.  Trumbull,  32  Wash.  211,  73  Pac.  381 68,  102 


TABLE  OF   CASES  CITED. 

SECTION 

Rosner,  In  re,  5  Wash.  488,  32  Pac.  106 118 

Russell  v.  Mitehell,  61  Wash.  178,  112  Pac.  250 60 


Sackman  v.  Thomas,  24  Wash.  660,  64  Pac.  819 59 

Sadler  v.  Niesz,  5  Wash.  182,  31  Pac.  630,  1030 66,  92 

Savings,  Loan  &  Building  Co.  v.  Jones,  9  Wash.  434,  37  Pac.  666 

44,  46 

Schell  T.  Walla  Walla,  44  Wash.  43,  86  Pac.  1114 42,  89 

Schlaechter  v.  Miller,  4  Wash.  463,  30  Pac.  745,  31  Pac.  595 112 

Schlotfeldt  v.  Bull,  17  Wash.  6,  48  Pac.  343 122 

Sehlotfeldt  v.  Bull,  22  Wash.  362,  60  Pac.  1126 44,  46 

Schon  v.  Modern  Woodmen  of  America,  51  Wash.  482,  99  Pac.  25 

46 

6chulze  v.  Oregon  Eailroad  &  Navigation  Co.,  41  Wash.  614,  84 

Pac.  587  67 

Scott  v.  Bourn,  13  Wash.  471,  43  Pac.  372 118 

Scott  v.  Patterson,  1  Wash.  487,  20  Pac.  593 68,  102 

Seattle  v.  Buzby,  2  Wash.  Ter.  25,  3  Pac.  180 101 

Seattle  v.  Smithers,  37  Wash.  119,  79  Pac.  615 46 

Seattle  &  Montana  Ey.  Co.  v.  Johnson,  7  Wash.  97,  34  Pa«.  567..  46 

Seattle  Lumber  Co.  v.  Sweeney,  43  Wash.  1,  85  Pac.  677 44 

Seattle  Trust  Co.  v.  Pitner,  17  Wash.  365,  49  Pac.  505 55,  56,  58 

Seattle  Turning  &  Scroll  Works  v.  Eckloff,  63  Wash.  82,  114  Pac. 

893  123 

Seavey  v.  Seattle,  17  Wash.  361,  49  Pac.  517 46 

Sellers  v.  Pacific  Wrecking  &  Salvage  Co.,  34  Wash.  Ill,  74  Pac. 

1056  44 

Shaw  v.  Spencer,  57  Wash.  587,  107  Pac.  383 63,  104,  105,  106 

Sheehan  v.  Bailey  Building  Co.,  42  Wash.  535,  85  Pae.  44 56 

Shipley  v.  MePherson,  46  Wash.  172,  89  Pac.  408 107 

Shoemaker  v.  Bryant  Lumber  &  Shingle  Mill  Company,  27  Wash. 

637,  68  Pac.  380 44 

Shorno  v.  Doak,  45  Wash.  613,  88  Pac.  1113 44,  45,  93 

Shotwell  v.  Dodge,  8  Wash.  337,  36  Pac.  254 46 

Shuey  v.  Holmes,  27  Wash.  489,  67  Pac.  1096 44 

Sipes  v.  Puget  Sound  Electric  By.  Co.,  50  Wash.  585,  97  Pac.  723 

56,58 

Slayton  v.  Felt,  40  Wash.  1,  82  Pac.  173 46 

Slyfield  v.  Willard,  43  Wash.  179,  86  Pac.  392 46 

Small  v.  Geddis,  4  Wash.  518,  30  Pac.  746 112 

Smalley  v.  Laugenour,  30  Wash.  307,  70  Pac.  786 56 

Smith  v.  Glenn,  40  Wash.  262,  82  Pac.  605 42,  46,  89,  112,  122 


XXIV  TABLE  OF   CASES   CITED. 

SECTION 

Smith  v.  State,  5  Wash.  273,  31  Pac.  865 44 

Snyder  v.  Kelso,  3  Wash.  181,  28  Pac.  335 94,  107 

Soder  v.  Adams  Hardware  Co.,  38  Wash.  607,  80  Pac.  775 44 

Spencer  v.  Alki  Point  Transp.  Co.,  53  Wash.  77,  132  Am.  St.  Rep. 

1058,  101  Pac.  509 46 

Spencer  v.  Commercial  Company,  36  Wash.  374,  78  Pac.  914....  44 

Spoar  Y.  Spokane  Turn-Verein,  64  Wash.  208,  116  Pac.  627 44 

Spokane  Falls  v.  Browne,  3  Wash.  84,  27  Pac.  1077 68,  102 

Spokane  Falls  r.  Curry,  2  Wash.  541,  27  Pac.  477 44 

Spokane  &  Idaho  Lumber  Co.  v.  Loy,  21  Wash.  501,  58  Pac.  672, 

60  Pac.  1119 57 

Spokane  &  Idaho  Lumber  Co.  v.  Stanley,  25  Wash.  653,  66  Pac. 

92 68,  102 

Sprague  v.  Meagher,  32  Wash.  62,  72  Pac.  108,  708 109 

Squire  v.  Greer,  2  Wash.  209,  26  Pac.  222 90 

Staats  v.  Pioneer  Ins.  Assn.,  55  Wash.  51,  104  Pac.  185 44 

Standard  Furniture  Co.  v.  Anderson,  38  Wash.  582,  80  Pac.  813.  .. 

53,  59,  73 

Stark  v.  Jenkins,  1  Wash.  Ter.  421 67 

State  v.  Anderson,  20  Wash.  193,  55  Pac.  39 44 

State  v.  Armstrong,  19  Wash.  706,  53  Pac.  351 43 

State  v.  Aschenbrenner,  45  Wash.  125,  87  Pac.  1118 60,  89 

State  v.  Blanck,  10  Wash.  292,  38  Pac.  1012 60 

State  v.  Carey,  4  Wash.  424,  30  Pae.  729 112 

State  v.  Dalton,  43  Wash.  278,  86  Pac.  590 44 

State  v.  Dunn,  22  Wash.  67,  60  Pac.  49 123 

State  v.  Erickson,  54  Wash.  472,  103  Pac.  796 46 

State  v.  Greer,  11  Wash.  244,  39  Pac.  874 44 

State  v.  Heron,  19  Wash.  706,  53  Pac.  348 43 

State  T.  Hinchey,  5  Wash.  326,  31  Pac.  870 93,  98 

State  v.  Holmes,  12  Wash.  169,  40  Pac.  735,  41  Pac.  887 44 

State  v.  Howard,  15  Wash.  425,  46  Pac.  650 44,  46,  93 

State  v.  Howard,  33  Wash.  250,  74  Pac.  382 44 

State  v.  Hoyt,  4  Wash.  818,  30  Pac.  1060 94 

State  v.  Hubbell,  18  Wash.  482,  51  Pac.  1039 43 

State  v.  Humason,  5  Wash.  499,  32  Pac.  Ill 44 

State  v.  Hyde,  22  Wash.  551,  61  Pac.  719 45 

State  v.  Jasper,  21  Wash.  707,  57  Pac.  796 44 

State  v.  Johnson,  24  Wash.  75,  63  Pac.  1124 43 

State  v.  Johnny  Tommy,  19  Wash.  270,  53  Pac.  157 44 

State  v.  Kemp,  5  Wash.  212,  31  Pac.  711 43 

State  v.  Landes,  26  Wash.  325,  67  Pac.  72 60 

State  v.  Lee  Wing  Wah,  53  Wash.  294,  101  Pac.  873 44 

State  v.  Maines,  26  Wash.  160,  66  Pac.  431 46,  112,  118 


TABLE  OF   CASES   CITED.  XXV 

SECTION 

State  v.  Mayo,  42  Wash.  540,  7  Ann.  Gas.  881,  85  Pac.  251 46 

State  r.  Miles,  15  Wash.  534,  46  Pac.  1047 48 

State  v.  Morgan,  20  Wash.  708,  54  Pac.  936 44 

State  r.  Murrey,  30  Wash.  383,  70  Pac.  971 43 

State  v.  McGonigle,  14  Wash.  594,  45  Pac.  20 113,  44 

State  v.  Newcomb,  58  Wash.  414,  109  Pac.  355 44 

State  v.  Nichols,  15  Wash.  1,  45  Pac.  647 44 

State  v.  Packenham,  40  Wash.  403,  82  Pac.  597 44 

State  v.  Payne,  6  Wash.  563,  34  Pac.  317 106 

State  v.  Pearson,  37  Wash.  405,  79  Pac.  985 61 

State  Y.  Phillips,  59  Wash.  252,  109  Pac.  1047 46 

State  v.  Picani,  5  Wash.  343,  31  Pae.  878 94 

State  Y.  Pittan,  32  Wash.  137,  72  Pac.  1042 112 

State  v.  Bobinson,  12  Wash.  491,  41  Pac.  884 44 

State  v.  Eourk,  44  Wash.  464,  87  Pac.  507 44 

State  v.  Eutledge,  40  Wash.  9,  82  Pac.  126 47 

State  v.  Kyan,  34  Wash.  597,  76  Pac.  90 44 

State  v.  Seaton,  26  Wash.  305,  66  Pac.  397 62,  89,  118 

State  v.  Stuck,  38  Wash.  270,  80  Pac.  444 44 

State  v.  Smails,  63  Wash.  172,  115  Pac.  82 44 

State  v.  Vance,  29  Wash.  435,  70  Pac.  34 44,  46 

State  v.  Webb,  20  Wash.  500,  55  Pac.  935 44 

State  v.  White,  40  Wash.  428,  82  Pac.  743 47,  62,  67,  118 

State  v.  Wood,  33  Wash.  290,  74  Pac.  380 44 

State  v.  Wright,  60  Wash.  277,  111  Pac.  18 43 

State  v.  Wroth,  15  Wash.  621,  47  Pac.  106 123 

State  v.  Yandellj  34  Wash.  409,  75  Pac.  988 44,  52,  60 

State  v.  Young,  13  Wash.  584,  43  Pac.  881 44 

State  v.  Zettler,  15  Wash.  625,  47  Pac.  35 44,  112 

State  ex  rel.  Abernethy  v.  Moss,  13  Wash.  42,  42  Pac.  622,  43 

Pac.  373 119,120 

State  ex  rel.  Bickford  v.  Benson,  21  Wash.  365,  58  Pac.  217 

61,  64,  68,  100,  102,  118 

State  ex  rel.  Brown  v.  Brown,  31  Wash.  397,  72  Pac.  86,  62  L. 

E.  A.  974  66 

State  ex  rel.  Brown  v.  McQuade,  36  Wash.  579,  79  Pac.  207 89 

State  ex  rel.  Buddress  v.  Eohde,  8  Wash.  362,  36  Pac.  276 46 

State  ex  rel.  Clark  v.  Neal,  19  Wash.  642,  54  Pac.  31 

63,  65,  104,  105,  106,  119 

State  ex  rel.  Coella  v.  Fenimore,  2  Wash.  370,  26  Pac.  807 47 

State  ex  rel.  Cook  v.  Eeed,  36  Wash.  638,  79  Pac.  306 44 

State  ex  rel.  Cougill  v.  Sachs,  3  Wash.  691,  29  Pac.  446 109 

State  ex  rel.  Dutch  Miller  Mining  &  Smelting  Co.  v.  Superior 

Court,  30  Wash.  43,  70  Pac.  102 62,  94,  107,  118 


XXVI  TABLE  OP   CASES  CITED. 

SECTION 

State  ex  rel.  Fetterley  v.  Griffin,  32  Wash.  67,  72  Pac.  1030 

61,  71,  85,  86,  92,  112,  119 

State  ex  rel.  Fowler  v.  Steiner,  51  Wash.  239,  98  Pac.  609 

42,  82,  118,  120 

State  ex  rel.  Hennessy  v.  Huston,  32  Wash.  154,  72  Pac.  1015.  .67,  118 
State  ex  reL  Hersner  v.  Arthur,  7  Wash.  368,  36  Pac.  120 

71,  72,  92.,  112,  114,  115,  116,  118 

State  ex  rel.  Hinchey  v.  Allyn,  7  Wash.  285,  34  Pac.  914 109 

State  ex  rel.  Hofstetter  v.  Sheeks,  63  Wash.  408,  115  Pac.  859.. 

42,  70,  118 

State  ex  rel.  Hofstetter  v.  Sheeks,  65  Wash.  410,  118  Pac.  308. .  .42,  118 

State  ex  rel.  Ide  v.  Coon,  40  Wash.  682,  82  Pac.  993 89 

State  ex  rel.  Jensen  v.  Bell,  34  Wash.  185,  75  Pac.  641 66 

State  ex  rel.  Klein  v.  Superior  Court,  36  Wash.  44,  78  Pac.  137 

107,  114,  115,  116,  118 

State  ex  rel.  Langhorne  v.  Superior  Court,  32  Wash.  80,  72  Pac. 

1027 47 

State  ex  rel.  Malouf  v.  McDonald,  21  Wash.  201,  57  Pac.  336. . 

105,118 

State  ex  rel.  Miles  v.  Superior  Court,  13  Wash.  514,  43  Pac.  636 

107,118 

State  ex  rel.  Miller  v.  Seattle,  45  Wash.  691,  89  Pac.  152 112 

State  ex  rel.  Orr  v.  Fawcett,  17  Wash.  188,  49  Pac.  346 46 

State  ex  rel.  Palmer  Mountain  Tunnel  &  Power  Co.  v.  Superior 

Court,  63  Wash.  442,  115  Pac.  845 52,  57,  89,  118,  120 

State  ex  rel.  Payson  v.  Chapman,  35  Wash.  64,  76  Pac.  525. .  .67,  118 

State  ex  rel.  Plaisie  v.  Cole,  40  Wash.  474,  82  Pac.  749 89 

State  ex  rel.  Quade  v.  Allyn,  2  Wash.  470,  27  Pac.  233 45,  118 

State  ex  rel.  Eichardson  v.  Superior  Court,  41  Wash.  439,  83  Pac. 

1027 j 44,  46,  118 

State  ex  reL  Roberts  v.  Clifford,  55  Wash.  440,  104  Pac.  631... 

42,  82,  118,  120 

State  ex  rel.  Rochford  v.  Superior  Court,  4  Wash.  30,  29  Pac.  764. 

47 

State  ex  rel.  Eoyal  v.  Linn,  36  Wash.  116,  76  Pac.  513 

71,  112,  119,  120 

State  ex  rel.  Sander  v.  Jones,  20  Wash,  576,  56  Pac.  369 44 

State  ex  reL  Schwabacher  Brothers  &  Co.  v.  Superior  Court,  61 

Wash.  681,  112  Pac.  927 119 

State  ex  rel.  Smith  v.  Parker,  9  Wash.  653,  38  Pac.  156 

46,  90,  112,  115,  118 

State  ex  rel.  Tremblay  v.  McQuade,  12  Wash.  554,  41  Pac.  897. .  46 
State  ex  rel.  Van  Name  v.  Board  of  Directors  of  School  District 

No.  3,  14  Wash.  222,  44  Pac.  270 44,  45,  123 


TABLE   OP   CASES  CITED. 

SECTION 

etelter  T.  Fowler,  62  Wash.  345,  113  Pac.  1096,  114  Pac.  879 

92,  100,  104 

Stenger  v.  Boeder,  3  Wash.  41-2,  26  Pac.  748,  29  Pac.  211 40,  44 

Stinson  v.  Sachs,  8  Wash.  391,  36  Pac.  287 45,  109 

Stoddard  v.  Seattle  National  Bank,  12  Wash.  658,  40  Pac.  730. ..   122 

Stowe  v.  State,  2  Wash.  124,  2/5  Pac.  1086 47 

Sturgeon  v.  Tacoma  Eastern  E.  B.  Co.,  51  Wash.  124,  98  Pac.  87 ..     46 

Sudden  ft  Christenson  v.  Morse,  48  Wash.  101,  92  Pac.  9O1 56 

Suksdorf  v.  Humphrey,  36  Wash.  1,  77  Pac.  1071 45 

Swanson  v.  Pacific  Shipping  Co.,  60  Wash.  87,  110  Pac.  795 44,  46 

Sweeney  v.  Waterhouse  ft  Co.,  43  Wash.  613,  86  Pac.  946 44 

Swift  v.  Swift,  39  Wash.  600,  81  Pac.  1052 44,  45,  123 

Swope  v.  Seattle,  36  Wash.  114,  78  Pac.  607 44 


T 

Tacoma  v.  Tacoma  Light  &  Water  Co.,  16  Wash.  288,  47  Pac.  738. 

42 

Tacoma  Foundry   ft   Machinery   Co.   v.   Wolff,   4   Wash.    818,   30 

Pac.  1055 44 

Tacoma  Mill  Co.  v.  Sherwood,  11  Wash.  492,  39  Pac.  977 96 

Tatum  v.  Boyd,  11  Wash.  712,  39  Pac.  639 60 

Taylor  v.  City  Council  of  Tacoma,  15  Wash.  92,  45  Pac.  641 44,  112 

Taylor  v.  Modern  Woodmen  of  America,  42  Wash.  304,  7  Ann. 

Gas.  607,  84  Pac.  867 44 

Taylor  v.  Osburn,  1  Wash.  189,  22  Pac.  858 101,  106 

Taylor  v.  Spokane  Falls  ft  Northern  By.  Co.,  32  Wash.  450,  73 

Pac.  499  46 

Templeman  v.  Evans,  35  Wash.  302,  77  Pac.  381 45 

Tergeson  v.  Robinson  Mfg.  Co.,  48  Wash.  294,  93  Pac.  428 46 

Territory  v.  Lee,  3  Wash.  Ter.  396,  17  Pac.  884 43 

Thacker  Wood  ft  Mfg.  Co.  v.  Mallory,  27  Wash.  670,  68  Pac.  199 

44,  46 

Thomas  v.  Lincoln  County,  32  Wash.  317,  73  Pac.  367 62,  118 

Thompson  v.  Washington  Territory,  1  Wash.  Ter.  548 44,  46 

Thornely  v.  Andrews,  40  Wash.  580,  111  Am.  St.  Bep.  983,  1  L.  B. 

A.,  N.  S.,  1036,  82  Pac.  899 45 

Times  Printing  Co.  v.  Seattle,  26  Wash.  149,  64  Pac.  940 57 

Timm  v.  Stegman,  6  Wash.  13,  32  Pac.  1004 44 

Tischner  v.  Butledge,  35  Wash.  285,  77  Pac.  388 59 

Tompson  v.  Huron  Lumber  Co.,  5  Wash.  527,  32  Pac.  536 

46,  68,  102,  112 


XXV111  TABLE  OP  CASES  CITED. 

SECTION 

Townsend  Gas  &  Electric  Light  Co.  v.  Hill,  24  Wash.  469,  64  Pac. 

778 46 

Tullis  v.  Shannon,  3  Wash.  716,  29  Pac.  449 44,  46 

Turner  v.  Bailey,  12  Wash.  634,  42  Pac.  115 53,  59 


u 

United  States  v.  Lone  Fisherman,  3  Wash.  Ter.  316,  13  Pac.  617. .     93 
United  States  Savings,  Loan  &  Building  Co.  v.  Jones,  9  Wash.  434, 

37  Pac.   666..  .  113 


V 

Van  Brocklin  v.  Queen  City  Printing  Co.,  21  Wash.  447,  58  Pac. 

575 44 

Van  Lehn  v.  Morse,  16  Wash.  210,  47  Pac.  435 89 


w 

Waite  v.  Stroud,  9  Wash.  333,  37  Pac.  324 42,  46 

Waite  v.  Wingate,  4  Wash.  324,  30  Pac.  81 44 

Wallace  v.  Oceanic  Packing  Co.,  25  Wash.  143,  64  Pac.  938 

61,  64,  100 

Walla  Walla  Printing  ft  Publishing  Co.  v.  Budd,  2  Wash.  Ter.  336, 

5  Pac.  602 44 

Warburton  v.  Kalph,  9  Wash.  537,  38  Pac.  140 

71,  72,  80,  112,  11-5,  116,  118,  123 

Ward  v.  Muggins,  7  Wash.  617,  3®  Pac.  740,  1015,  36  Pac.  285. ...  106 
Ward  v.  Springfield  Fire  &  Marine  Ins.  Co.,  12  Wash.  631,  42 

Pae.  119 46 

Ward  v.  Tucker,  7  Wash.  399,  36  Pac.  126,  1086 93,  113 

Warehime  v.  Schweitzer,  51  Wash.  299,  98  Pac.  747 122 

Warner  v.  Miner,  41  Wash.  98,  82  Pac.  1033 66 

Watson  v.  Sawyer,  12  Wash.  35,  40  Pac.  413,  41  Pac.  43 46 

Watt  v.  O'Brien,  6  Wash.  415,  33  Pac.  969 100,  109 

Weatherall  v.  Weatherall,  56  Wash.  344,  105  Pac.  822 46,  71 

Western  American  Co.  v.  St.  Ann  Co.,  22  Wash.  158,  60  Pac.  158 . .  57 

Wheeler  v.  Lager,  3  Wash.  732,  29  Pac.  453 44 

Whidby  Land  &  Development  Co.  v.  Nye,  5  Wash.  301,  31  Pac.  752  44 

Whitehouse  v.  Nelson  Drygoods  Co.,  40  Wash.  189,  82  Pac.  161.  .  44 

Whitney  v.  Knowlton,  33  Wash.  319,  74  Pac.  469 44,  46 

Whittier  v.  Cadwell,  4  Wash.  819,  820,  30  Pac.  1097,  1098 44 


TABLE  OP  CASES  CITED.  XXIX 

SECTION 

Wilson  v.  Aberdeen,  25  Wash.  614,  66  Pac.  95 44 

Wilson  v.  Morrell,  5  Wash.  654,  32  Pac.  733 122 

Wilson  v.  Puget  Sound  Electric  Ry.  Co.,  50  Wash.  596,  97  Pac. 

727 56 

Wiltsie  v.  Young,  41  Wash.  570,  84  Pac.  602 44 

Windt  v.  Banniza,  2  Wash.  147,  26  Pac.  189 44 

Winsor  v.  McLachlan,  12  Wash.  154,  40  Pac.  727 44 

Wintermute  v.  Garner,  8  Wash.  585,  36  Pac.  490 101 

Wittler-Corbin  Machinery  Co.  v.  Martin,  47  Wash.  123,  91  Pac.  629 

67 

Woelflen  v.  Lewiston-Clarkston  Co.,  49  Wash.  405,  95  Pac.  493 56 

Wollin  v.  Smith,  27  Wash.  349,  67  Pac.  561 60,  61,  66,  68,  102 


Y 

Yakima  Water,  Light  &  Power  Co.  v.  Hathaway,  18  Wash.  377, 

51   Pac.  471 46 

Yelm  Jim  v.  Territory,  1  Wash.  Ter.  63 4« 

Young  v.  Borzone,  26  Wash.  4,  66  Pac.  135,  421 46 


z 

Zenkner  v.  Northern  Pacific  R.  R.  Co.,  2  Waah.  Ter.  60,  14  Pac. 

596 112 

Zindorf  Construction  Co.  v.  Western  American  Co.,  27  Wash.  31, 

67   Pac.   374 44,  60 


BILLS  OF  EXCEPTIONS 

AND 

STATEMENTS  OF  FACTS. 


CHAPTER  I. 

DIVISIONS  OF  THE  SUBJECT— STATUTORY! 
PROVISIONS. 

§     1.  Divisions  of  the  Subject. 

§     2.  Exceptions — Definition  of  Exception. 

§     3.  When  to  be  Taken. 

§     4.  Manner  of  Taking  in  Cases  Tried  by  Court. 

§     5.  Manner  of  Taking  in  Jury  Cases. 

§     6.  How  Entered  in  Minutes. 

§     7.  Manner  of  Taking  and  Entry. 

§     8.  Review  on  Appeal. 

§     9.  Bill  of  Exceptions — What  Constitutes.     Statement  of 

Facts — What  Constitutes. 

§  10.  [Amendments — Notice  of  Application  to   Settle   and 

Certify. 

§  11.  How  Written  Evidence  Certified. 

§  12.  Certificate,  What  to  Contain— How  Signed. 

§  13.  How  Certified  upon  Change  or  Death  of  Judge. 

§  14.  When  to  be  Filed— Effect  of  Irregularity. 

§  15.  Return  of  Copy  of  Bill  or  Statement — Extension  of 

Time  for  Brief; 

§  16.  What  Shall  be  Part  of  Record. 

§  17.  How  Certified  When  Cases  Consolidated. 

§  18.  Construction  of  Chapter. 

§  19.  Judgment-roll — What  Constitutes. 

§  20.  Appeals  to  the  Supreme  Court — Time  of  Taking. 


§§  1-3      BILLS  OF  EXCEPTIONS  AND   STATEMENTS   OP   FACTS.         2 

§  21.  Record    on    Appeal — What    Constitutes — Duties    of 

Clerk. 

§  22.  Time  for  Filing  and  Serving  Briefs  on  Appeal. 

§  23.  Jurisdiction — Effect  of  Appeal  upon. 

§  24.  Calendar — How  Prepared. 

§  25.  Motion  to  Dismiss  Appeal. 

§  26.  Hearing  and  Disposition  of  Motion. 

§  27.  What  may  be  Reviewed. 

§  28.  Costs  on  Appeal. 

§  29.  Rules  and  Regulations  of  the  Supreme  Court. 

§  30.  Statutory  Method  of  Appealing  Exclusive. 

§  31.  Manner  of  Conducting  Trials — Charging  Jury. 

§  32.  Powers  of  Judge  in  Other  Counties  of  His  District. 

§  33.  Decisions  and  Rulings  Out  of  His  Own  District. 

§  1.  Divisions  of  the  Subject. — Bills  of  exceptions 
and  statements  of  facts  will  be  considered,  first,  with 
reference  to  the  statutory  provisions  relating  thereto; 
2.  With  reference  to  the  rules  of  the  supreme  court 
relating  thereto;  3.  With  reference  to  the  distinction 
between  them;  4.  With  reference  to  their  preparation; 
5.  With  reference  to  their  proposal ;  6.  With  reference 
to  their  settlement;  7.  With  reference  to  their  authen- 
tication ;  8.  With  reference  to  their  legal  effect. 

§  2.    Exceptions  —  Definition    of    Exception. — The 

following  are  the  statutory  provisions  which  relate  to 
the  subject  of  bills  of  exceptions  and  statements  of 
facts : 

"An  exception  is  a  claim  of  error  in  a  ruling  or 
decision  of  a  court,  judge  or  other  tribunal,  or  officer 
exercising  judicial  functions,  made  in  the  course  of  an 
action  or  proceeding  or  after  judgment  therein."1 

§  3.  When  to  be  Taken. — "It  shall  not  be  neces- 
sary or  proper  to  take  or  enter  an  exception  to  any 

1  Rem.  &  Bal.  Code,  §  381. 


3  STATUTORY   PROVISIONS.  §  §  4,  5 

ruling  or  decision  mentioned  in  the  last  section  which 
is  embodied  in  a  written  judgment,  order  or  journal 
entry  in  the  cause.  But  this  section  shall  not  apply 
to  the  report  of  a  referee  or  commissioner,  or  to  find- 
ings of  fact  or  conclusions  of  law  in  a  report  or  de- 
cision of  a  referee  or  commissioner,  or  in  a  decision 
of  a  court  or  judge  upon  a  cause  or  part  of  a  cause, 
either  legal  or  equitable,  tried  without  a  jury. ' ' 2 

§  4.    Manner  of  Taking  in  Cases  Tried  by  Court. — 

* '  Exceptions  to  the  report  of  a  referee  or  commissioner, 
or  to  findings  of  fact  or  conclusions  of  law  in  a  report 
or  decision  of  a  referee  or  commissioner,  or  in  a  deci- 
sion of  a  court  or  judge  upon  a  cause  or  part  of  a  cause, 
either  legal  or  equitable,  tried  without  a  jury,  may  be 
taken  by  any  party,  either  by  stating  to  the  judge, 
referee  or  commissioner  when  the  report  or  decision 
is  signed,  that  such  party  excepts  to  the  same,  speci- 
fying the  part  or  parts  excepted  to  (whereupon  the 
judge,  referee  or  commissioner,  shall  note  the  excep- 
tions in  the  margin  or  at  the  foot  of  the  report  or 
decision) ;  or  by  filing  like  written  exceptions  within 
five  days  after  the  filing  of  the  report  or  decision,  or, 
where  the  report  or  decision  is  signed  subsequently 
to  the  hearing  and  in  the  absence  of  the  party  ex- 
cepting, within  five  days  after  the  service  on  such 
party  of  a  copy  of  such  report  or  decision  or  of  writ- 
ten notice  of  the  filing  thereof."3 

§  5.  Manner  of  Taking  in  Jury  Cases. — "Excep- 
tions to  a  charge  to  a  jury,  or  to  a  refusal  to  give  as 
a  part  of  such  charge  instructions  requested  in  writ- 
ing, may  be  taken  by  any  party  by  stating  to  the 
court,  after  the  jury  shall  have  retired  to  consider  of 

2  Hem.  &  Bal.  Code,  §  382. 
8  Eem.  &  Bal.  Code,  §  383. 


§§6,7      BILLS  OP  EXCEPTIONS  AND  STATEMENTS  OF   FACTS.         4 

their  verdict,  and,  if  practicable,  before  the  verdict 
has  been  returned,  that  such  party  excepts  to  the 
same,  specifying  by  numbers  of  paragraphs  or  other- 
wise the  parts  of  the  charge  excepted  to,  and  the  re- 
quested instructions  the  refusal  to  give  which  is 
excepted  to;  whereupon  the  judge  shall  note  the  excep- 
tions in  the  minutes  of  the  trial,  or  cause  the  stenog- 
rapher (if  one  is  in  attendance)  so  to  note  the  same."* 

§  6.  How  Entered  in  Minutes. — "Exceptions  to 
any  ruling  upon  an  objection  to  the  admission  of  evi- 
dence, offered  in  the  course  of  a  trial  or  hearing,  need 
not  be  formally  taken,  but  the  question  put  or  other 
offer  of  evidence,  together  with  the  objection  there- 
to and  the  ruling  thereon,  shall  be  entered  by  the 
court,  judge,  referee  or  commissioner  (or  by  the  sten- 
ographer, if  one  is  in  attendance)  in  the  minutes  of 
the  trial  or  hearing,  and  such  entry  shall  import  an 
exception  by  the  party  against  whom  the  ruling  was 
made."5 

§  7.  Manner  of  Taking  and  Entry. — " Exceptions 
to  any  ruling  or  decision  made  in  the  course  of  a 
trial  or  hearing,  or  in  the  progress  of  a  cause,  except 
those  to  which  it  is  provided  in  this  chapter  that 
no  exception  need  be  taken  and  those  to  which  some 
other  mode  of  exception  is  in  this  chapter  prescribed, 
may  be  taken  by  any  party  by  stating  to  the  court, 
judge,  referee  or  commissioner  making  the  ruling  or 
decision,  when  the  same  is  made,  that  such  party  ex- 
cepts to  the  same;  whereupon  such  court,  judge,  ref- 
eree or  commissioner  shall  note  the  exception  in  the 
minutes  of  the  trial,  hearing  or  cause,  or  shall  cause 

4  Rem.  &  Bal.  Code,  §  384.     See,  also,  §  31,  infra. 
6  Rera.  &  Bal.  Code,  §  385. 


5  STATUTORY   PROVISIONS.  §  8 

the  stenographer  (if  one  is  in  attendance)  so  to  note 
the  same."* 

§  8.  Review  on  Appeal. — "  Alleged  error  in  any 
order,  ruling  or  decision  to  which  it  is  provided  in 
this  chapter  that  no  exception  need  be  taken,  or  in 
any  report,  finding  of  fact,  conclusion  of  law,  charge, 
refusal  to  charge,  or  other  ruling  or  decision  which 
shall  have  been  excepted  to  by  any  party  as  pre- 
scribed in  this  chapter,  shall  be  reviewed  by  the 
supreme  court,  upon  an  appeal  taken  by  the  party 
against  whom  any  such  ruling  or  decision  was  made, 
or  in  which  he  has  joined,  from  any  other  appealable 
order  or  from  the  final  judgment  in  the  cause,  where 
such  error,  if  found  to  exist,  would  materially  affect 
the  correctness  of  the  judgment  or  order  appealed 
from:  Provided,  the  ruling  or  decision,  the  alleged  er- 
ror in  which  is  sought  to  be  so  reviewed,  together  with 
the  exception  thereto,  if  any,  was  a  matter  of  record 
in  the  cause  in  the  first  instance,  or  before  the  hearing 
of  the  appeal  has  been  brought  into  the  record  in  the 
manner  prescribed  in  this  chapter.  And  any  such 
alleged  error  shall  also  be  considered  in  the  court 
wherein  or  by  a  judge  whereof  the  same  was  com- 
mitted, upon  the  hearing  and  decision  of  a  motion  for 
a  new  trial,  a  motion  for  judgment  notwithstanding  a 
verdict,  or  a  motion  to  set  aside  a  referee's  report  or 
decision,  made  by  a  party  against  whom  the  ruling  or 
decision  to  be  reviewed  was  made,  whether  the  alleged 
erroneous  ruling  or  decision  is  a  part  of  the  record  or 
not,  where  the  alleged  error,  if  found  to  exist,  would 
materially  affect  the  decision  of  the  motion.  But  no 
exception  to  any  appealable  order  or  to  any  final  judg- 
ment shall  be  necessary  or  proper  in  order  to  secure, a 

•  Bern.  &  Bal.  Code,  §  386. 


§  9         BILLS   OF   EXCEPTIONS   AND   STATEMENTS    OP   FACTS.  6 

review  of  such  order  or  judgment  upon  direct  appeal 
therefrom. ' ' T 

§  9.  Bill  of  Exceptions — What  Constitutes.  State- 
ment of  Facts — What  Constitutes. — "Any  party  to 
any  action  or  proceeding  may,  at  any  stage  thereof, 
have  any  rulings  or  decisions  of  the  court,  or  a  judge, 
referee  or  commissioner  thereof,  in  the  cause,  together 
with  the  necessary  evidence,  papers  or  proceedings 
connected  therewith  or  on  which  the  same  were  based, 
and  the  exceptions  thereto,  if  any,  not  already  a 
part  of  the  record  in  the  cause,  or  so  much  of  all 
or  any  thereof  as  is  not  already  a  part  of  the  record, 
made  a  part  of  the  record  in  the  cause,  by  the  cer- 
tifying of  a  bill  of  exceptions  as  in  this  chapter  pro- 
vided. And  any  such  party  may,  after  the  making 
of  an  appealable  order  or  the  final  judgment  in  the 
cause,  have  all  rulings,  decisions,  evidence,  papers, 
proceedings  and  exceptions  in  the  cause,  or  so  much 
thereof  as  may  be  material  to  an  appeal  from  such 
appealable  order  or  from  the  final  judgment,  as  the 
case  may  be,  not  already  a  part  of  the  record,  made  a 
part  of  the  record  in  the  cause  by  the  certifying  of  a 
statement  of  facts,  as  in  this  chapter  provided.  The 
certifying  of  a  bill  of  exceptions  or  statement  of  facts 
shall  not  prevent  the  subsequent  certifying  of  other 
bills  of  exceptions  or  statements  of  facts,  or  both, 
comprising  other  matters  in  the  cause,  at  the  instance 
of  the  same  or  another  party;  but  only  one  bill  of 
exceptions  or  statement  of  facts  can  be  settled  or  cer- 
tified after  the  rendition  of  the  final  judgment  in  the 
cause. ' ' ' 


T  Rem.  &  Bal.  Code,  §  387. 
•  Rem.  &  Bal.  Code,  §  388. 


7  STATUTORY   PROVISIONS.  §§10,11 

§  10.  Amendments — Notice  of  Application  to  Settle 
and  Certify. — "A  party  desiring  to  have  a  bill  of  ex- 
ceptions or  statement  of  facts  certified  must  prepare 
the  same  as  proposed  by  him,  file  it  in  the  cause  and 
serve  a  copy  thereof  on  the  adverse  party,  and  shall 
also  serve  written  notice  of  the  filing  thereof  on  any 
other  party  who  has  appeared  in  the  cause.  Within 
ten  days  after  such  service  any  other  party  may  file 
and  serve  on  the  proposing  party,  any  amendments 
which  he  may  propose  to  the  bill  or  statement.  Either 
party  may  then  serve  upon  the  other  a  written  notice 
that  he  will  apply  to  the  judge  of  the  court  before 
whom  the  cause  is  pending  or  was  tried,  at  a  time  and 
place  specified,  the  time  to  be  not  less  than  three  nor 
more  than  ten  days  after  service  of  the  notice,  to  settle 
and  certify  the  bill  or  statement ;  and  at  such  time  and 
place,  or  at  any  other  time  or  place  specified  in  an  ad- 
journment made  by  order  or  stipulation,  the  judge  shall 
settle  and  certify  the  bill  or  statement.  If  the  judge 
is  absent  at  the  time  named  in  a  notice  or  fixed  by  ad- 
journment, a  new  notice  may  be  served.  If  no  amend- 
ment shall  be  served  within  the  time  aforesaid,  the 
proposed  bill  or  statement  shall  be  deemed  agreed  to 
and  shall  be  certified  by  the  judge  at  the  instance  of 
either  party,  at  any  time,  without  notice  to  any  other 
party  on  proof  being  filed  of  its  service,  and  that  no 
amendments  have  been  proposed;  and  if  amendments 
be  proposed  and  accepted,  the  bill  or  statement  as  so 
amended  shall  likewise  be  certified  on  proof  being  filed 
of  its  service  and  the  service  and  acceptance  of  the 
amendments. ' ' ' 

§  11.  How  Written  Evidence  Certified. — "Deposi- 
tions and  other  written  evidence  on  file  shall  be  appro- 


Rem.  &  Bal.  Code,  §  389. 


§§12,13      BILLS  OP  EXCEPTIONS  AND  STATEMENTS  OP  FACTS.         8 

priately  referred  to  in  the  proposed  bill  or  statement, 
and  when  it  is  certified  the  same  or  copies  thereof,  if 
the  judge  so  direct,  shall  be  attached  to  the  bill  or 
statement  and  shall  thereupon  become  a  part  there- 
of."10 

§  12.  Certificate,  What  to  Contain— How  Signed. — 
"The  judge  shall  certify  that  the  matters  and  proceed- 
ings embodied  in  the  bill  or  statement,  as  the  case  may 
be,  are  matters  and  proceedings  occurring  in  the  cause 
and  that  the  same  are  thereby  made  a  part  of  the  rec- 
ord therein;  and,  when  such  is  the  fact,  he  shall  fur- 
ther certify  that  the  same  contains  all  the  material 
facts,  matters  and  proceedings  heretofore  occurring  in 
the  cause  and  not  already  a  part  of  the  record  therein, 
or  (as  the  case  may  be)  such  thereof  as  the  parties 
have  agreed,  to  be  all  that  are  material  therein.  The 
certificate  shall  be  signed  by  the  judge,  but  need  not 
be  sealed;  and  thereupon  all  the  matters  and  proceed- 
ings embodied  in  the  bill  of  exceptions  or  statement 
of  facts,  as  the  case  may  be,  shall  become  and  thence- 
forth remain  a  part  of  the  record  in  the  cause,  for  all 
the  purposes  thereof  and  of  any  appeal  therein.  The 
judge  may  correct  or  supplement  his  certificate  ac- 
cording to  the  fact,  at  any  time  before  an  appeal  is 
heard.  And  if  the  judge  refuse  to  settle  or  certify  a 
bill  of  exceptions  or  statement  of  facts,  or  to  correct 
or  supplement  his  certificate  thereto,  in  a  proper  case, 
he  may  be  compelled  so  to  do  by  a  mandate  issued 
out  of  the  supreme  court,  either  pending  an  appeal 
or  prior  thereto. ' '  " 

§  13.  How  Certified  upon  Change  or  Death  of  Judge. 
"If  the  judge  before  whom  the  cause  was  pending  or 

10  Hem.  &  Bal.  Code,  §  390. 

11  Rem.  &  Bal.  Code,  §  391. 


9  STATUTORY  PROVISIONS.  §  14 

tried  shall  from  any  cause  have  ceased  to  be  such  judge 
he  shall,  notwithstanding,  settle,  and  certify,  as  the 
late  judge,  any  bill  of  exceptions  or  statement  of  facts 
that  it  would  be  proper  for  him  to  settle  and  certify 
if  he  were  still  such  judge,  and  such  acts  on  his  part 
shall  have  the  same  effect  as  if  he  were  still  in  office; 
and  he  may  be  compelled  by  mandate  so  to  do,  as 
if  still  in  office.  If  such  judge  shall  die  or  remove 
from  the  state  while  in  office  or  afterward,  within  the 
time  within  which  a  bill  of  exceptions  or  statement 
of  facts,  in  a  cause  that  was  pending  or  tried  before 
him,  might  be  settled  and  certified  under  the  provi- 
sions of  this  chapter,  and  before  having  certified  such 
bill  or  statement,  such  bill  or  statement  may  be  settled 
by  stipulation  of  the  parties  with  the  same  effect  as 
if  duly  settled  and  certified  by  such  judge  while  still 
in  office.  But  if  the  parties  cannot  agree,  and  if  such 
judge,  when  removed  from  the  state,  does  not  attend 
within  the  state  and  settle  and  certify  a  bill  of  excep- 
tions or  statement  of  facts  in  case  one.  has  been  duly 
proposed,  his  successor  in  office  shall  settle  and  certify 
such  bill  or  statement  in  the  manner  in  this  chapter 
provided,  and  in  so  doing  he  shall  be  guided,  so  far  as 
practicable,  by  the  minutes  taken  by  his  predecessor 
in  office,  or  by  the  stenographer,  if  one  was  in  attend- 
ance on  the  court  or  judge,  and  may,  in  order  to  deter- 
mine any  disputed  matter  not  sufficiently  appearing 
upon  such  minutes,  examine  under  oath  the  attorneys 
in  the  cause  who  were  present  at  the  trial  or  hearing, 
or  any  of  them. ' ' ia 

§  14.  When  to  be  Filed— Effect  of  Irregularity.— 
"A  proposed  bill  of  exceptions  or  statement  of  facts 
must  be  filed  and  served  either  before  or  within  thirty 

12  Rem.  &  Bal.  Code,  §  392. 


§  15      BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OF   FACTS.          10 

days  after  the  time  begins  to  run  within  which  an  ap- 
peal may  be  taken  from  the  final  judgment  in  the  cause, 
or  (as  the  case  may  be)  from  an  order  with  a  view  to 
an  appeal  from  which  the  bill  or  statement  is  proposed : 
Provided,  that  the  time  herein  prescribed  may  be  en- 
larged either  before  or  after  its  expiration,  once  or 
more,  but  not  for  more  than  sixty  days  additional  in 
all,  by  stipulation  of  the  parties,  or  for  good  cause 
shown  and  on  such  terms  as  may  be  just,  by  an  order 
of  the  court  or  judge  wherein  or  before  whom  the 
cause  is  pending  or  was  tried,  made  on  notice  to  the 
adverse  party.  And  the  certifying  of  a  bill  of  excep- 
tions or  statement  of  facts  provided  for  by  this  chap- 
ter, and  the  filing  and  service  of  the  proposed  bill  or 
statement,  the  notice  of  application  for  the  settlement 
thereof,  and  all  other  steps  and  proceedings  leading 
up  to  the  making  of  the  certificate,  shall  be  deemed 
steps  and  proceedings  in  the  cause  itself,  resting  upon 
the  jurisdiction  originally  acquired  by  the  court  in  the 
cause,  and  no  irregularity  or  failure  to  pursue  the 
steps  prescribed  by  this  chapter  on  the  part  of  any 
party,  or  the  judge,  shall  affect  the  jurisdiction  of  the 
judge  to  settle  or  certify  a  proper  bill  of  exceptions 
or  statement  of  facts. ' ' 1S 

§  15.  Return  of  Copy  of  Bill  or  Statement — Ex- 
tension of  Time  for  Brief. — "The  copy  of  a  proposed 
bill  or  statement  which  is  served  as  in  this  chapter 
prescribed,  shall  be  returned  to  the  party  serving  the 
same  upon  the  bill  or  statement  being  certified,  if  he 
has  appealed  to.  the  supreme  court,  or  upon  his  there- 
after appealing,  for  his  use  in  preparing  his  brief  on  the 
appeal,  and  the  time  limited  by  any  law  or  rule  of  court 
for  the  service  and  filing  of  his  brief  shall  be  enlarged 

13  Rem.  &  Bal.  Code,  §  393. 


11  STATUTORY  PROVISIONS.  §§16,17 

by  any  delay  in  returning  such  copy  as  herein  required 
to  the  extent  of  such  delay;  and  when  he  serves  his 
brief  he  shall  return  such  copy  to  the  party  on  whom 
it  was  originally  served,  and  his  brief  shall  not  be 
deemed  served  till  such  copy  is  so  returned  by  him. ' '  " 

§  16.  What  Shall  be  Part  of  Record.— "All  re- 
ports of  referees  or  commissioners,  with  the  testimony 
and  other  evidence  returned  into  court  therewith,  all 
findings  of  fact  and  conclusions  of  law  made  in  writ- 
ing by  a  judge,  referee  or  commissioner  and  signed 
by  him,  all  charges  to  a  jury  made  wholly  in  writing, 
all  instructions  requested  in  writing  to  be  given  as 
part  of  a  charge,  all  verdicts,  general  or  special,  and 
all  rulings  and  decisions  embodied  in  a  written  judg- 
ment, order  or  journal  entry  in  the  cause,  together 
with  all  exceptions,  if  any,  taken  to  any  thereof,  as 
well  as  all  papers  and  matters  hitherto  deemed  a  part 
of  the  record,  shall  be  deemed  and  are  hereby  declared 
to  become,  upon  being  filed  in  the  cause,  or,  as  the  case 
may  be,  embodied  in  a  journal  entry,  a  part  of  the 
record  in  the  cause,  for  all  the  purposes  thereof  and 
of  any  appeal  therein;  and  it  shall  not  be  necessary 
or  proper,  for  any  purpose,  to  embody  the  same  in  any 
bill  of  exceptions  or  statement  of  facts. ' '  " 

§  17.    How  Certified  When  Cases  Consolidated. — 

"When  two  or  more  causes  shall  have  been  consolidated 
it  shall  not  be  necessary,  for  any  purposes  of  an  appeal 
which  concerns  only  one  or  more,  and  not  all  of  the 
original  causes,  to  embody  in  a  bill  of  exceptions  or 
statement  of  facts  any  fact,  matter  or  proceeding  that 
relates  solely  to  an  original  cause  with  which  the  ap- 

14  Rem.  &  Bal.  Code,  §  394. 

15  Rem.  &  Bal.  Code,  §  395. 


§§18,19      BILLS  OP  EXCEPTIONS  AND  STATEMENTS  OP  PACTS.      12 

peal  is  not  concerned;  and  the  bill  or  statement  shall 
be  certified  as  in  this  act  prescribed,  notwithstanding 
the  omission  therefrom  of  such  facts,  matters  and  pro- 
ceedings. ' ' " 

§  18.  Construction  of  Chapter. — "This  chapter 
shall  apply  to  and  govern  all  civil  actions,  and  pro- 
ceedings, both  legal  and  equitable,  and  all  criminal 
causes,  in  the  superior  courts,  but  shall  not  apply  to 
courts  of  justices  of  the  peace  or  other  inferior  courts 
or  tribunals  from  which  an  appeal  does  not  lie  directly 
to  the  supreme  court.  This  chapter  shall  govern  pro- 
ceedings had  after  it  shall  take  effect,  in  actions  then 
pending  as  well  as  those  in  actions  thereafter  begun; 
but  it  shall  not  affect  any  right  acquired  or  proceed- 
ing had  prior  to  the  time  when  it  shall  take  effect, 
nor  restore  any  right  or  enlarge  any  time  then  already 
lost  or  expired.  And  except  as  above  provided  all 
acts  and  parts  of  acts  inconsistent  with  the  provisions 
of  this  act  are  hereby  repealed."  " 

§  19.  Judgment-roll — What  Constitutes. — ' '  Immedi- 
ately after  entering  the  judgment,  the  clerk  shall  at- 
tach the  following  papers  in  the  case,  which  shall  con- 
stitute the  judgment-roll: 

"  1.  If  the  complaint  has  not  been  answered  by  any 
defendant,  and  no  pleading  has  been  filed  by  an  inter- 
venor,  he  shall  attach  together,  in  the  order  of  their 
filing,  issuing,  and  entry,  the  complaint,  summons, 
and  proof  of  service,  and  a  copy  of  the  entry  of  judg- 
ment; 

"2.  In  all  other  cases  he  shall  attach  together  in 
like  manner  the  summons  and  proof  of  service,  the 

"  Bern.  &  Bal.  Code,  §  396. 
»  Rem.  &  Bal.  Code,  §  397. 


13  STATUTORY  PROVISIONS.  §§20,21 

pleadings,  bill  of  exceptions,  all  orders  relating  to 
change  of  parties,  together  with  a  copy  of  the  entry 
of  judgment,  and  all  other  journal  entries  or  orders  in 
any  way  involving  the  merits  and  necessarily  affecting 
the  judgment. ' ' 18 

§  20.  Appeals  to  the  Supreme  Court — Time  of  Tak- 
ing.— "In  civil  actions  and  proceedings  an  appeal  from 
any  final  judgment  must  be  taken  within  ninety  days 
after  the  date  of  the  entry  of  such  final  judgment ;  and 
an  appeal  from  any  order,  other  than  a  final  order,  from 
which  an  appeal  is  allowed  by  this  act,  within  fifteen 
days  after  the  entry  of  the  order,  if  made  at  the  time  of 
the  hearing,  and  in  all  other  cases  within  fifteen  days 
after  the  service  of  a  copy  of  such  order,  with  writ- 
ten notice  of  the  entry  thereof,  upon  the  party  ap- 
pealing, or  his  attorney.  In  criminal  causes,  an  ap- 
peal must  be  taken  within  ninety  days  after  the  entry 
of  final  judgment."19 

§  21.  Record  on  Appeal — What  Constitutes — Duties 
of  Clerk. — "  Within  ninety  days  after  an  appeal  shall 
have  been  taken  by  notice  as  provided  in  this  title,  the 
clerk  of  the  superior  court  shall  prepare,  certify  and 
file  in  his  office,  at  the  expense  of  the  appellant  (except 
in  criminal  appeals  prosecuted  in  forma  pauperis,  and 
in  such  cases  at  the  expense  of  the  county),  a  transcript 
containing  a  copy  of  so  much  of  the  record  and  files  as 
the  appellant  shall  deem  material  to  the  review  of  the 
matters  embraced  within  the  appeal,  said  transcript 
to  be  so  prepared,  certified  and  filed,  in  the  office  of 
the  clerk,  at  or  before  the  time  when  the  appellant 
shall  serve  and  file  his  opening  brief,  as  hereinafter 

18  Rem.  &  Bal.  Code,  §  442. 
"  Rem.  &  Bal.  Code,  §  1718. 


§  21      BILLS   OP   EXCEPTIONS   AND    STATEMENTS   OF    FACTS.          14 

provided.  Within  four  months  after  said  appeal  shall 
have  been  taken  by  notice  as  aforesaid,  the  clerk  of 
the  superior  court  shall,  at  the  expense  of  appellant; 
send  up  to  the  supreme  court  said  transcript  together 
with  the  original  briefs  on  appeal  filed  in  his  office. 
The  papers  and  copies  so  sent  up  together  with  any 
thereafter  sent  up  as  hereinbelow  provided,  shall  con- 
stitute the  record  on  appeal.  Any  bill  of  exceptions 
or  statement  of  facts  on  file  when  the  record  is  so  sent 
up  shall  be  sent  up  as  a  part  thereof,  unless  the  su- 
perior court  or  a  judge  thereof  has  not  yet  passed  on 
an  application  for  the  settlement  and  certifying  of 
such  bill  or  statement.  In  case  any  bill  of  exceptions 
or  statement  of  facts  shall  be  filed  or  certified,  or  any 
other  addition  to  the  records  or  files  shall  be  made 
after  the  record  on  appeal  shall  have  been  sent  up,  a 
supplementary  record  on  appeal  embracing  so  much 
thereof  as  the  appellant  deems  material,  or  a  copy 
thereof  may  be  prepared,  certified  and  sent  up  at  any 
time  prior  to  the  hearing  of  the  appeal.  And  in  case 
the  respondent  deems  any  part  of  the  files  or  record 
not  already  sent  up  to  be  material  to  the  review  of 
the  matters  embraced  within  the  appeal,  he  may  cause 
the  clerk,  in  like  manner,  at  his  expense,  to  prepare, 
certify  and  send  up  a  supplementary  record  on  appeal 
embracing  such  omitted  files  or  records,  or  copies 
thereof,  at  any  time  prior  to  the  hearing  of  the  appeal. 
Any  such  supplementary  record  or  records,  if  filed  in 
the  supreme  court  prior  to  the  hearing  of  the  appeal, 
shall  be  considered  by  the  court  as  part  of  the  record 
on  appeal,  so  far  as  the  same  may  be  material  to  a 
review  of  the  matters  embraced  within  the  appeal. 
When  the  review  of  an  original  paper  in  the  cause 
may  be  important  to  a  correct  decision  of  the  appeal, 
the  court  or  judge  may  order  the  clerk  to  transmit 


15  STATUTORY   PROVISIONS.  §  22 

the  same  to  the  clerk  of  the  supreme  court  and  the 
same  shall  be  transmitted  accordingly,  and  shall  be 
under  the  control  of  the  supreme  court. ' ' 20 

§  22.  Time  for  Filing  and  Serving  Briefs  on  Appeal. 
"Within  ninety  days  after  an  appeal  shall  have  been 
taken  by  notice  as  provided  in  this  title,  the  appellant 
shall  serve  on  the  respondent  three  copies  and  shall  file 
with  the  clerk  of  the  superior  court  fifteen  copies,  to- 
gether with  proof  or  written  admission  of  service,  as 
aforesaid,  of  a  printed  brief  on  the  appeal  upon  his  part, 
which  brief  shall  clearly  point  out  each  error  that  the 
appellant  relies  on  for  a  reversal,  and  shall  conform  to 
such  regulations  of  its  contents  in  other  respects,  and 
its  form  and  size,  as  the  supreme  court  by  its  rules 
may  have  prescribed.  Within  thirty  days  after  the 
service  of  the  appellant's  brief,  the  respondent  shall 
likewise  serve  and  file  with  the  clerk  of  the  superior 
court,  with  like  proof  of  service,  the  like  number  of 
copies  of  a  printed  brief  on  the  appeal  upon  his  part 
which  shall  likewise  conform  to  the  rules  of  the  su- 
preme court.  Not  less  than  ten  days  prior  to  the  hear- 
ing the  appellant  may  also  serve  and  file  either  with 
the  clerk  of  the  superior  court  or  in  the  supreme 
court  like  printed  brief  or  briefs,  strictly  in  reply  to 
respondent's  brief.  The  time  for  service  and  filing  of 
briefs,  as  in  this  section  prescribed,  may  be  extended 
by  order  of  the  superior  court  for  good  cause  shown, 
or  by  stipulation  of  the  parties  concerned;  and  if  the 
time  for  filing  any  statement  of  facts  shall  be  extended 
by  order  or  stipulation,  the  time  herein  prescribed  for 
serving  and  filing  the  appellant's  opening  brief  shall 
thereby  be  correspondingly  extended.  Either  party 
may  after  the  filing  of  his  briefs  and  not  less  than 

20  Rem.  &  Bal.  Code,  §  1729. 


§§23,24      BILLS  OP  EXCEPTIONS  AND  STATEMENTS  OP  PACTS.      16 

one  day  prior  to  the  hearing  of  the  appeal  submit  to 
the  supreme  court  and  to  the  adverse  party  a  written 
or  printed  statement  of  any  additional  authorities, 
with  suitable  comment  thereon  strictly  in  support  of 
the  position  taken  in  his  brief  hereinabove  required 
to  be  filed.  But  the  appellant  shall  not  be  permitted 
to  urge  in  any  such  reply  brief  or  statement  of  addi- 
tional authorities,  or  on  the  hearing,  any  grounds  for 
reversal  not  clearly  pointed  out  in  his  original 
brief."21 

§  23.  Jurisdiction—Effect  of  Appeal  upon. — "Upon 
the  taking  of  an  appeal  by  notice  as  provided  in  this 
title,  and  the  filing  of  a  bond  to  render  the  appeal 
effectual,  the  supreme  court  shall  acquire  jurisdiction 
of  the  appeal  for  all  necessary  purposes,  and  shall 
have  control  of  the  superior  court  and  of  all  inferior 
officers  in  all  matters  pertaining  thereto,  and  may  en- 
force such  control  by  a  mandate  or  otherwise,  and,  if 
necessary,  by  fine  and  imprisonment,  which  imprison- 
ment may  be  continued  until  obedience  shall  be  ren- 
dered to  the  mandate  of  the  supreme  court.  But  the 
superior  court  shall,  nevertheless,  retain  jurisdiction 
for  the  purpose  of  all  proceedings  by  this  act  provided 
to  be  had  in  such  court,  and  for  the  purpose  of  settle- 
ment and  certifying  of  bills  of  exceptions  and  state- 
ments of  facts,  and  for  all  purposes  in  so  far  as  the 
cause  is  not  affected  by  the  appeal. ' ' 2a 

§  24.  Calendar— How  Prepared. — "All  appeals  in 
which  the  record  shall  have  been  filed  in  the  supreme 
court  at  least  ten  days  before  the  beginning  of  any 
stated  session  of  the  court,  shall  be  placed  on  the 

21  Rem.  &  Bal.  Code,  §  1730. 

22  Rem.  &  Bal.  Code,  §  1731. 


17  STATUTORY  PROVISIONS.  §  25 

calendar  of  the  court  for  hearing  at  such  session; 
and  the  subsequent  filing  of  a  supplementary  record 
shall  not  affect  the  position  of  the  appeal  on  the  calen- 
dar. But  the  hearing  of  an  appeal  may  at  any  time 
be  postponed  by  the  court  or  continued  for  the  session, 
of  its  own  motion  or  for  good  cause  shown,  and  on 
such  terms  as  may  be  just. ' ' 2S 

§  25.  Motion  to  Dismiss  Appeal. — "Any  respond- 
ent may  move  the  supreme  court,  at  such  time  and 
in  such  manner  as  the  court  by  its  rules  may  have 
prescribed,  to  dismiss  an  appeal  either  on  the  ground 
that  the  court  has  no  jurisdiction  of  an  appeal  from 
the  judgment  or  order  from  which  the  appeal  was 
taken,  or  that  the  notice  of  appeal  was  not  served  or 
filed  within  the  time  limited  by  law,  or  is  insufficient, 
or  that  the  appeal  bond  was  not  filed  within  the  time 
limited  by  law,  or  is  not  in  form  or  substance  such  as 
to  render  the  appeal  effectual,  or  that  the  appellant's 
brief  has  not  been  served  or  filed,  or  that  the  record 
on  appeal  has  not  been  sent  up,  or  that  the  appeal  has 
not  been  diligently  prosecuted,  or  on  any  ground  going 
to  the  merits  of  the  further  prosecution  of  the  appeal, 
or  on  any  two  or  more  of  the  grounds  hereinabove 
mentioned;  and  there  may  be  combined  with  a  motion 
to  dismiss  a  motion  to  affirm  the  judgment  or  order 
appealed  from,  or  a  motion  for  damages  on  the  ground 
that  the  appeal  was  taken  merely  for  delay,  or  was 
manifestly  unauthorized  by  law,  or  both  such  motions. 
A  general  appearance  in  the  supreme  court  shall  not 
be  a  waiver  of  the  right  to  make  any  motion  herein 
authorized."  2* 

"  Rem.  &  Bal.  Code,  §  1732. 
"  Rem.  &  Bal.  Code,  §  1733. 

a 


§  §  26,  27      BILLS  OF  EXCEPTIONS  AND  STATEMENTS  OP  FACTS.      18 

§  26.  Hearing  and  Disposition  of  Motion.— "If  the 
supreme  court  on  the  hearing  of  any  such  motion  or 
motions  shall  find  the  grounds  or  any  thereof  alleged, 
for  the  same,  to  be  well  taken  and  true  in  effect,  the 
court  may  grant  the  same  in  whole  or  in  part,  but 
when  any  such  motion  does  not  go  to  the  substance  of 
the  appeal,  or  to  the  right  of  appeal,  and  the  court 
shall  be  of  the  opinion  that  the  moving  party  can 
be  compensated  in  costs,  or  by  the  imposition  of 
other  terms  for  any  delay  of  the  appellant  which  is 
made  the  ground  of  any  such  motion  (except  a  failure 
to  take  the  appeal  within  the  time  limited  by  law) 
the  court,  in  its  discretion,  may  deny  the  motion  on 
such  terms  as  may  be  just.  The  court  shall  upon  like 
terms  allow  all  amendments  in  matters  of  form,  cura- 
tive of  defects  in  proceedings  to  the  end  that  sub- 
stantial justice  be  secured  to  the  parties,  and  no  ap- 
peal shall  be  dismissed  for  any  informality  or  defect 
in  the  notice  of  appeal,  the  appeal  bond,  or  the  service 
of  either  thereof,  or  for  any  defect  of  parties  to  the 
appeal  if  the  appellant  shall  forthwith,  upon  order 
of  the  supreme  court,  perfect  the  appeal. ' ' 25 

§  27.  What  may  be  Reviewed. — "Upon  an  appeal 
from  a  judgment,  the  supreme  court  may  review  any 
intermediate  order  or  determination  of  the  court  be- 
low which  involves  the  merits  and  materially  affects 
the  judgment,  appearing  upon  the  record  sent  up 
from  the  superior  court.  Any  questions  of  fact  or 
of  law,  decided  upon  trials  by  the  court  or  by  ref- 
erees, in  either  legal  or  equitable  causes,  may  be  re- 
viewed, when  exceptions  to  the  findings  of  fact  or  to 
the  conclusions  of  law,  or  both,  have  been  duly  taken, 
by  either  party  and  sent  up  in  the  record  on  appeal; 

15  Kern.  &  Bal.  Code,  §  1734. 


19  STATUTORY   PROVISIONS.  §  28 

and  in  actions  legal  or  equitable,  tried  by  the  court 
below  without  a  jury,  wherein  a  statement  of  facts 
or  bill  of  exceptions  shall  have  been  certified,  the  evi- 
dence of  facts  shown  by  such  bill  of  exceptions  or 
statement  of  facts  shall  be  examined  by  the  supreme 
court  de  novo,  so  far  as  the  findings  of  fact  or  a  refusal 
to  make  findings  based  thereon  shall  have  been  ex- 
cepted  to,  and  the  cause  shall  be  determined  by  the 
record  on  appeal,  including  such  exceptions  or  state- 
ment."24 

§  28.  Costs  on  Appeal. — ' '  Costs  shall  be  allowed  in 
the  supreme  court,  irrespective  of  any  costs  taxed  in 
the  case  in  the  court  below,  to  the  prevailing  party  in 
the  supreme  court,  on  any  appeal  in  any  civil  action 
or  proceeding  as  follows : 

' '  The  fees  of  the  clerk  of  the  supreme  court  paid  by 
the  prevailing  party,  the  fees  of  the  clerk  of  the  court 
below  for  preparing,  certifying  and  sending  up  the 
records  on  appeal,  or  any  supplementary  record,  paid 
by  the  prevailing  party,  and  twenty-five  dollars  attor- 
neys'  fees,  besides  his  necessary  disbursements  for  the 
printing  of  briefs,  and  any  sum  actually  paid  or  in- 
curred by  the  prevailing  party  as  stenographer's  fees, 
not  exceeding  ten  cents  a  folio,  for  making  a  transcript 
of  the  evidence  or  any  part  thereof  included  in  the  bill 
of  exceptions  or  statement  of  facts;  but  when  the  judg- 
ment of  the  court  below  shall  be  affirmed  in  part  and 
reversed  in  part,  or  affirmed  as  to  some  of  the  parties 
and  reversed  as  to  others,  or  modified,  the  costs  shall 
be  in  the  discretion  of  the  court,  and  when  the  judg- 
ment is  reversed  and  a  new  trial  ordered,  the  court 
may  in  its  discretion  direct  that  costs  of  the  prevail- 
ing party  shall  abide  the  result  of  the  action.  When 

26  Kern.  &  Bal.  Code,  §  1736. 


§§  29-31      BILLS  OF  EXCEPTIONS  AND  STATEMENTS  OP  PACTS.      20 

in  the  opinion  of  the  supreme  court  a  brief  of  the  pre- 
vailing party  shall  be  unnecessarily  long,  or  improper 
in  substance,  the  court  may  in  its  discretion  order  the 
disallowance  as  costs  of  any  part  or  the  whole  of  the 
disbursements  for  printing  the  same. ' '  " 

§  29.    Rules  and  Regulations  of  the  Supreme  Court. 

"The  supreme  court  is  hereby  authorized  to  make  all 
needful  rules  and  regulations  not  inconsistent  with  law 
concerning  practice  and  procedure  in  cases  appealed 
to  the  supreme  court. ' ' 2* 

§  30.  Statutory  Method  of  Appealing  Exclusive. — 
"The  mode  provided  by  this  title  for  appealing  cases 
to  the  supreme  court,  and  for  securing  a  revision  of 
the  same  therein,  shall  be  exclusive  and  shall  super- 
sede all  other  methods  heretofore  provided.  But  no 
rights  acquired  under  statutes  which  are  abrogated  by 
this  title  shall  be  lost  by  reason  of  the  passage  of  this 
title,  and  all  appeals  pending  when  this  title  takes 
effect  may  be  prosecuted  to  their  determination  as 
if  this  title  had  not  been  passed. ' ' *9 

§  31.  Manner  of  Conducting  Trials— Charging 
Jury. — "The  court  must  reduce  the  charge  to  be  given 
the  jury  to  writing,  and  at  the  conclusion  of  the  evi- 
dence he  shall  read  his  written  charge  to  the  jury. 
Either  party  may  request  such  instructions  as  he 
deems  material  to  the  case,  and  the  court  may  hear 
them  upon  the  propriety  of  the  requested  instructions 
before  finally  settling  the  charge  that  he  will  give.  If 
a  stenographer  shall  be  in  attendance  upon  the  trial 

tr  Hem.  &  Bal.  Code,  §  1744. 
28  Bern.  &  Bal.  Code,  §  1753. 
28  Rem.  &  Bal.  Code,  §  1754. 


21  STATUTORY  PROVISIONS.  §  32 

of  the  cause,  the  court  shall  have  the  right  to  dictate 
the  charge  he  desires  to  give  to  such  stenographer,  and 
to  have  the  stenographer  reduce  the  same  to  writing 
for  him  and  a  copy  for  each  of  the  parties  plaintiff  and 
defendant.  And  the  cost  thereof  shall  be  taxed  as 
other  costs  in  the  action.  When  the  charge  shall  have 
been  given  by  the  court,  the  plaintiff,  or  party  having 
the  burden  of  proof,  may,  by  himself,  or  one  counsel, 
address  the  court  and  jury  upon  the  law  and  facts  in 
the  case,  after  which  the  adverse  party  may  address 
the  court  and  jury  in  like  manner,  by  himself  and  one 
counsel  or  by  two  counsel,  and  be  followed  by  the 
party  or  counsel  of  the  party  first  addressing  the  court. 
No  more  than  two  speeches  on  behalf  of  the  plaintiff 
or  defendant  shall  be  allowed.  After  the  argument 
shall  have  been  concluded,  the  jury  shall  retire  to  con- 
sider their  verdict,  and  shall  take  with  them  to  the 
jury-room,  among  other  matters  proper  to  be  taken  to 
their  jury-room  for  further  consideration  by  them,  the 
written  charge  given  them  by  the  court.  Either  party, 
at  any  time  before  the  hearing  of  a  motion  for  a  new 
trial  may  except  to  the  instructions  given  by  the  court, 
or  any  part  thereof. ' ' 30 

§  32.  Powers  of  Judge  in  Other  Counties  of  His 
District. — "Any  judge  of  the  superior  court  of  the 
state  of  Washington  shall  have  power,  in  any  county 
within  his  district:  (1)  To  sign  all  necessary  orders 
and  papers  in  probate  matters  pending  in  any  other 
county  in  his  district;  (2)  to  issue  restraining  orders, 
and  to  sign  the  necessary  orders  of  continuance  in  ac- 
tions or  proceedings  pending  in  any  other  county  in 
his  district;  (3)  to  decide  and  rule  upon  all  motions, 

30  Rem.  &  Bal.  Code,  §  339,  subd.  (4) ;  Sess.  Laws  1909,  p, 
184,  §  1,  subd.  (4).  See,  also,  §  5,  supra. 


§  33      BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OP   PACTS.          22 

demurrers,  issues  of  fact  or  other  matters  that  may 
have  been  submitted  to  him  in  any  other  county.  All 
such  rulings  and  decisions  shall  be  in  writing  and  shall 
be  filed  immediately  with  the  clerk  of  the  proper 
county:  Provided,  that  nothing  herein  contained  shall 
authorize  the  judge  to  hear  any  matter  outside  of  the 
county  wherein  the  cause  or  proceeding  is  pending, 
except  by  consent  of  the  parties. ' ' " 

§  33.  Decisions  and  Rulings  Out  of  His  Own  Dis- 
trict.— "  Any  judge  of  the  superior  court  of  the  state  of 
Washington  who  shall  have  heard  any  cause,  either 
upon  motion,  demurrer,  issue  of  fact,  or  other  matter  in 
any  county  out  of  his  district,  may  decide,  rule  upon, 
and  determine  the  same  in  any  county  in  this  state, 
which  decision,  ruling  and  determination  shall  be  in 
writing  and  shall  be  filed  immediately  with  the  clerk 
of  the  county  where  such  cause  is  pending."  M 

81  Rem.  &  Bal.  Code,  §  41. 

82  Rem.  &  Bal.  Code,  §  42. 


23  RULES  OF  THE  SUPREME  COUET.       §§  34,  35 


CHAPTER  II. 

RULES  OP  THE  SUPREME  COURT. 

§  34.  Transcripts. 

§  35.  Contents  and  Style  of  Briefs. 

§  36.  Errors  Considered. 

§  37.  Service  of  Papers. 

§  38.  Service  of  Papers — Continued. 

§  39.  Service — Residence  Unknown.     Service  by  Mail. 

§  34.  Transcripts. — "Every  transcript  shall  be 
plainly  typewritten  with  a  black  record  ribbon  or 
printed,  on  paper  of  good  quality  of  the  size  of  legal 
cap,  and  be  free  from  interlineations  and  erasures,  and 
be  duly  paged,  and  prefixed  with  an  alphabetical  index 
to  its  contents  specifying  the  page  of  each  separate 
paper,  order  or  proceeding  and  of  the  testimony  of  each 
witness,  and  have  at  least  one  blank  fly-leaf.  Every 
statement  of  facts  and  bill  of  exceptions  must  also  be 
printed  or  typewritten,  and  when  typewritten  none 
other  than  a  black  ribbon  copy  shall  be  used. 

"Every  transcript  consisting  of  more  than  fifty 
leaves  shall  be  bound  under  the  direction  of  the  clerk 
of  the  supreme  court. ' '  * 

§  35.  Contents  and  Style  of  Briefs.— "(1)  Briefs 
shall  be  printed  throughout  in  plain,  clear  type  not 
smaller  in  size  than  small  pica,  on  unglazed  white 
paper,  and  shall  contain  a  clear  statement  of  the  case 
so  far  as  deemed  material  by  the  party,  with  reference 
to  the  pages  of  the  transcript  for  verification. 

"(2)  Each  error  relied  on  shall  be  clearly  pointed 
out  and  separately  discussed:  Provided,  that  several 

1  Rule  III  of  the  Rules  of  the  Supreme  Court. 


§  36      BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OP   PACTS.          24 

assignments  presenting  the  same  general  questions 
may  be  discussed  together. 

"(3)  In  citing  authorities,  the  title  of  the  case  and 
the  name  and  number  of  the  volume  must  be  clearly 
set  out  in  each  place  in  the  brief  where  the  case  is 
mentioned ;  and  in  citing  text-books,  the  number  of  the 
edition  must  be  specified. 

"(4)  Briefs  must  be  of  the  following  dimensions, 
to  wit:  8l/z  inches  from  top  to  bottom;  6l/2  inches  from 
edge  to  edge,  inclusive  of  the  margin,  which  must  be 
ll/2  inches  at  the  top,  bottom  and  outer  edge  of  each 
printed  page.  The  cover  shall  be  gray  in  color,  or 
some  color  that  will  readily  show  the  print.  The  title 
of  the  case,  the  designation — 'Brief  of  Appellant,' 
'Brief  of  Respondent,'  'Appellant's  Reply  Brief,'  as 
the  case  may  be — and  the  names  of  the  attorneys  sign- 
ing the  brief,  with  their  postoffice  address,  shall  be 
printed  on  the  front  cover. 

"(5)  In  all  equity  causes  and  actions  at  law  tried 
by  the  court  without  a  jury,  the  party  or  parties  ap- 
pealing shall  print  in  their  brief  the  findings  of  fact, 
with  the  exceptions  thereto,  on  which  any  question  is 
sought  to  be  raised  by  them  on  the  appeal;  and  shall 
also  print  such  findings  as  they  requested  the  lower 
court  to  make  and  which  were  refused,  with  their  ex- 
ceptions to  such  refusal,  in  case  any  error  or  conten- 
tion shall  be  based  thereon. 

"(6)  Twenty-five  copies  of  all  printed  briefs  shall 
be  filed  with  the  clerk. ' ' 2 

§  36.  Errors  Considered. — ' '  No  alleged  error  of  the 
superior  court  will  be  considered  by  the  supreme  court 
unless  the  same  be  clearly  pointed  out  in  the  appel- 
lant's brief:  Provided,  that  the  objection  that  the 

2  Rule  VIII  of  the  Rules  of  the  Supreme  Court. 


25  RULES  OP   THE   SUPREME   COURT.  §§37-39 

supreme  court  has  no  jurisdiction  of  the  appeal  may 
be  taken  at  any  time. ' '  * 

§  37.  Service  of  Papers. — "  Service  of  papers  must 
in  all  cases  be  made  upon  the  attorney  of  record  of  a 
party,  if  he  have  one,  unless  the  place  of  business  or 
residence  of  such  attorney  is  unknown,  when  it  may  be 
made  upon  the  party. ' '  * 

§  38.  Service  of  Papers — Continued. — "Service  of 
papers  may  be  made  as  follows : 

"  (1)  If  upon  an  attorney,  by  delivering  to  him  per- 
sonally, or  at  his  office  by  delivery  to  his  clerk  or  to 
the  person  having  charge  thereof;  or  if  his  office  be  not 
open,  or  there  be  no  one  in  charge  thereof,  at  his  resi- 
dence by  delivery  to  some  person  of  suitable  age  and 
discretion;  or,  if  neither  of  the  foregoing  methods  can 
be  followed,  by  deposit  in  the  postoffice  to  his  address, 
with  postage  prepaid:  Provided,  that  in  capital  cases 
a  motion  to  dismiss  an  appeal  shall  be  served  upon 
the  defendant  personally,  as  well  as  upon  the  attorney 
of  record. 

"  (2)  If  upon  a  party,  by  delivery  to  him  personally, 
or  at  his  residence  by  delivery  to  some  person  of  suit- 
able age  and  discretion,  between  the  hours  of  9  o  'clock 
in  the  forenoon  and  9  o  'clock  in  the  evening. ' ' 5 

§  39.  Service — Residence  Unknown.  Service  by 
Mail. — "Where  the  residence  of  a  party  and  that  of 
his  attorney  of  record,  if  he  have  one,  are  not  known, 
the  service  may  be  made  upon  the  clerk  of  the  superior 

8  Rule  XII  of  the  Rules  of  the  Supreme  Court. 

4  Rule  XVIII  of  the  Rules  of  the  Supreme  Court,  subd.  (2). 

*  Rule  XIX  of  the  Rules  of  the  Supreme  Court. 


§  39      BILLS  OF  EXCEPTIONS  AND   STATEMENTS   OF  FACTS.          26 

court  in  which  the  cause  was  tried,  for  the  party  or 
attorney."* 

"(1)  Service  may  be  made  by  mail  when  the  per- 
son making  the  service  and  the  person  on  whom  such 
service  is  to  be  made  reside  in  different  places  between 
which  there  is  a  regular  communication  by  mail. 
Postage  must  in  such  cases  be  prepaid. 

"(2)  Time  shall  begin  to  run  from  the  date  of  de- 
posit in  the  postoffice. ' ' T 

•  Rule  XX  of  the  Rules  of  the  Supreme  Court. 
f  Rule  XXI  of  the  Rules  of  the  Supreme  Court. 


27,  DISTINCTION  BETWEEN  THE  BILL  AND  STATEMENT.        §  40 


CHAPTER  III. 

THE   DISTINCTION  BETWEEN  A  BILL  OF  EXCEP- 
TIONS AND  A  STATEMENT  OF  FACTS. 

§  40.     The  Distinction  Between  Them. 

§  40.  The  Distinction  Between  Them.— In  the 
whole  range  of  the  state  reports  there  are  only  two 
cases  wherein  the  distinction  between  a  bill  of  excep- 
tions and  a  statement  of  facts  is  considered.  In  one 
of  them  it  was  said  that  bills  of  exceptions  were  lim- 
ited to  actions  at  law  and  special  proceedings,  and  that 
statements  of  facts  applied  only  to  actions  for  equi- 
table relief.1 

In  the  other  case  the  court  said : ' '  There  is  now  prac- 
tically little  or  no  difference  between  them,  except  in 
the  manner  of  the  settlement. ' ' 2 

As  these  decisions  were  rendered  prior  to  the  enact- 
ment of  the  existing  statutes,  there  is,  therefore,  no 
judicial  authority  upon  the  subject  at  the  present  time. 

By  the  express  provisions  of  the  statutes,  bills  of 
exceptions  and  statements  of  facts  apply  to  all  actions 
and  proceedings.* 

A  statement  of  facts  may  be  denned  to  be  a  prop- 
erly prepared  and  regularly  proposed  statement  in 
writing  which  is  duly  settled  and  certified,  or  authen- 
ticated, after  the  entry  of  an  appealable  order  or  the 
final  judgment  to  which  it  relates,  and  embodying  all 
rulings  or  decisions  of  the  court,  or  a  judge,  referee  or 
commissioner  thereof,  not  already  a  part  of  the  rec- 

1  Stenger  v.  Roeder,  3  Wash.  412,  28  Pac.  748,  29  Pac.  211. 

2  Jones  v.  Jenkins,  3  Wash.  17,  27  Pac.  1022. 
«  Rem.  &  Bal.  Code,  §  388.     See  §  9,  supra. 


§  40      BILLS   OF   EXCEPTIONS   AND   STATEMENTS   OP   FACTS.          28 

ord,  and  all  evidence,  papers,  proceedings  and  excep- 
tions in  a  cause,  or  so  much  thereof  as  may  be  material 
to  an  appeal  from  such  appealable  order  or  from  the 
final  judgment,  as  the  case  may  be,  not  already  a  part 
of  the  record,  the  legal  effect  of  which  is  to  make  its 
contents  a  part  of  the  record  in  the  cause  for  all  the 
purposes  thereof,  and  of  any  appeal  therein.4 

A  statement  of  facts  thus  secures  a  review  of  all  al- 
leged errors  that  do  not  already  appear  upon  the  face 
of  the  record  and  are  material  to  an  appeal.  In  other 
words,  an  appeal,  unaided  by  a  bill  of  exceptions  or 
statement  of  facts,  secures  a  review  merely  of  such 
alleged  errors  as  already  appear  upon  the  face  of  the 
record;  and  it  is  the  office  of  a  statement  of  facts  to 
enlarge  the  scope  of  an  appeal  by  embodying  in  the 
record  not  only  all  rulings  or  decisions  of  the  court,  or 
a  judge,  referee  or  commissioner  thereof,  not  already 
a  part  of  the  record,  but  also  all  evidence,  papers,  pro- 
ceedings and  exceptions  in  a  cause,  or  part  of  a  cause, 
as  the  case  may  be,  not  already  a  part  of  the  record 
and  material  to  the  appeal. 

It  is  a  complete  supplement  to  the  record,  and  se- 
cures a  review  not  only  of  all  alleged  errors  of  law, 
not  appearing  upon  the  face  of  the  record,  but  also 
secures  a  review  of  all  alleged  errors  of  fact  of  the 
court,  or  a  judge,  referee  or  commissioner  thereof, 
not  already  appearing  upon  the  face  of  the  record.  In 
fine,  it  may  secure  the  review  of  a  cause  de  novo  by 
the  supreme  court  when  the  cause  itself  is  one  which 
may  be  reviewed  de  novo;  that  is,  when  the  cause  is 
an  action  for  equitable  relief,  or  an  action  for  legal 
relief  which  is  tried  without  a  jury,  or  a  special  pro- 

4  Rem.  &  Bal.  Code,  §§  388,  391.  Rule  III  of  the  Rules  of 
the  Supreme  Court.  See  §§9,  12,  34,  supra. 


29  DISTINCTION  BETWEEN  THE  BILL  AND  STATEMENT.        §  40 

ceeding  which  is  tried  without  the  intervention  of  a 
jury. 

Criminal  actions,  and  actions  for  legal  relief  which 
are  tried  with  a  jury,  and  special  proceedings  which 
are  tried  with  a  jury,  are  not  in  their  nature  review- 
able  de  novo,  for  the  supreme  court  will  not  usurp  the 
province  of  a  jury.  A  statement  of  facts  cannot, 
therefore,  in  such  causes,  secure  a  review  de  novo  of 
matters  of  fact  decided  by  a  jury;  but  can  only  secure 
a  review  of  rulings  upon  matters  of  law  and  rulings 
upon  such  matters  of  fact  and  other  incidental  mat- 
ters as  may  fall  within  the  peculiar  province  of  the 
court,  or  a  judge,  referee  or  commissioner  thereof, 
where  the  alleged  errors  do  not  already  appear  upon 
the  face  of  the  record.  The  evidence  in  a  cause  tried 
with  a  jury  may,  it  is  true,  be  reviewed  by  the  supreme 
court ;  as,  for  instance,  where  an  appeal  has  been  taken 
from  an  order  granting  a  new  trial  upon  the  ground 
that  the  evidence  is  insufficient  to  justify  the  verdict; 
but  the  supreme  court  in  reviewing  the  evidence  in 
such  a  case  does  not  do  so  for  the  purpose  of  review- 
ing the  cause  de  novo.  It  reviews  the  evidence  in  such 
a  case  for  the  purpose  of  passing  upon  an  alleged  erro- 
neous ruling  of  the  court,  namely,  the  order  granting 
the  new  trial.  The  statement  which  embodies  the  evi- 
dence in  such  a  case  is  properly  denominated  a  state- 
ment of  facts;  for  the  ruling,  that  is,  the  order  grant- 
ing the  new  trial,  is  already  a  part  of  the  record. 

A  bill  of  exceptions  may  be  defined  to  be  a  properly 
prepared  and  regularly  proposed  statement  in  writing 
which  is  duly  settled  and  certified,  or  authenticated, 
either  before  or  after  the  entry  of  an  appealable  order 
or  the  final  judgment  to  which  it  relates,  and  embody- 
ing any  rulings  or  decisions  of  the  court,  or  a  judge, 
referee  or  commissioner  thereof,  in  a  cause,  together 


§  40      BILLS   OF   EXCEPTIONS   AND   STATEMENTS   OF   FACTS.          30 

with  the  necessary  evidence,  papers  or  proceedings 
connected  therewith,  or  on  which  the  same  were  based, 
and  the  exceptions  thereto,  if  any,  not  already  a  part 
of  the  record  in  the  cause,  or  so  much  of  all  or  any 
thereof  as  is  not  already  a  part  of  the  record,  the  legal 
effect  of  which  is  to  make  its  contents  a  part  of  the 
record  in  the  cause  for  all  the  purposes  thereof,  and  of 
any  appeal  therein.5 

Whenever  it  is  desired  to  supplement  the  record 
merely  to  the  extent  of  embodying  therein  such  rulings 
or  decisions  as  are  not  already  a  part  of  the  record, 
together  with  the  necessary  evidence,  papers  or  pro- 
ceedings connected  therewith,  or  on  which  the  same 
were  based,  and  the  exceptions  thereto,  if  any,  not  al- 
ready a  part  of  the  record,  such  embodiment  is  prop- 
erly effected  by  means  of  a  bill  of  exceptions. 

Thus,  rulings  on  the  admission  or  rejection  of  evi- 
dence, rulings  made  during  a  trial  before  a  jury  on  the 
alleged  misconduct  of  an  attorney,  oral  instructions 
given  to  a  jury,  the  giving  of  instructions  wholly  in 
writing,  or  the  refusal  to  give  instructions  requested 
in  writing,  and  comments  of  the  court  upon  the  facts 
of  a  cause  in  the  presence  and  hearing  of  the  jury,  are 
a  few  of  the  many  rulings  that  are  not  already  a  part 
of  the  record ;  and  are,  therefore,  rulings  to  which  a  bill 
of  exceptions  appropriately  applies. 

A  comment  by  the  court  upon  the  facts  of  a  cause 
in  the  presence  and  hearing  of  the  jury  may  not  at 
first  glance  appear  to  be  a  ruling ;  but  a  comment  in 
such  a  case  is  an  opinion  of  the  court,  and  is  in  the 
nature  of  a  charge  to  the  jury  upon  the  whole  or  a  por- 
tion of  the  facts.  It  may,  of  course,  be  disregarded 
by  the  jury  because  it  is  expressly  forbidden  by  the 

6  Rem.  &  Bal.  Code,  §§  388,  391.  Rule  III  of  the  Rules  of 
the  Supreme  Court.  See  §§9,  12,  34,  supra. 


31  DISTINCTION  BETWEEN  THE  BILL  AND  STATEMENT.        §  40 

constitution;  but  it  is  an  oral  ruling  or  charge,  never- 
theless. 

Instructions  made  wholly  in  writing,  and  instruc- 
tions requested  in  writing,  are  made  a  part  of  the  rec- 
ord by  statute.6 

It  might,  therefore,  seem  illogical  to  say  that  the 
giving  of  instructions  wholly  in  writing,  or  the  refusal 
to  give  instructions  requested  in  writing,  are  rulings 
which  are  not  already  a  part  of  the  record;  but  the 
giving  of  written  instructions,  or  the  refusal  to  give 
instructions  requested  in  writing,  is  one  thing,  and  the 
evidence  of  what  was  given  or  refused  is  quite  another. 
The  actual  reading  of  the  written  instructions,  or  the 
refusal  to  read  the  requested  instructions,  is  the  rul- 
ing of  the  court.  This  ruling  will  not  appear  from 
the  mere  fact  that  written  instructions,  or  instructions 
requested  in  writing,  are  on  file,  and  copies  thereof 
embodied  in  the  transcript  on  appeal. 

The  giving  of  the  instructions,  or  the  refusal  to  give 
them,  must  be  shown.  This  is  the  ruling  of  the  court. 
When  this  is  shown,  the  written  instructions,  or  the 
instructions  requested  in  writing  and  refused,  as  the 
case  may  be,  become  evidence  of  what  was  read  .or 
refused.  They  are  at  no  time  evidence  of  the  actual 
reading  or  refusal  to  read.  Neither  the  written  in- 
structions nor  the  instructions  requested  in  writing 
and  refused  should  be  embodied  in  a  bill  of  exceptions 
or  statement  of  facts,  for  they  are  already  a  part  of  the 
record. 

The  ruling  of  the  court,  however, — that  is,  the  fact 
that  the  court  read  the  written  instructions  embodied 
in  the  transcript  on  appeal,  or  refused  to  read  the  re- 
quested instructions  embodied  therein, — may  properly 
be  incorporated  in  the  record  by  means  of  a  bill  of  ex- 

•  See  §  46,  subds.  5,  6,  infra. 


§  40     BILLS  OF   EXCEPTIONS   AND  STATEMENTS   OP   PACTS.          32 

ceptions,  for  it  is  a  ruling  which  is  not  already  a  part 
of  the  record. 

There  may  be  one  or  more  bills  of  exceptions  and  a 
statement  of  facts  relating  to  the  same  appealable 
order  or  final  judgment.7 

In  this  event  the  bill  or  bills  of  exceptions  will,  of 
course,  embody  merely  oral  rulings,  together  with  such 
facts,  matters  and  proceedings  as  are  material  thereto 
on  appeal  and  not  already  a  part  of  the  record,  while 
the  statement  of  facts  will  embody  all  the  remaining 
facts,  matters  and  proceedings  which  are  material  to 
the  appeal  and  not  already  a  part  of  the  record. 

Upon  becoming  a  part  of  the  record,  the  bill  or  bills 
of  exceptions  and  the  statement  of  facts  may  thus 
assist  each  other  in  securing  the  review  de  novo  of 
causes  which  are  tried  without  a  jury;  and  the  stat- 
ute accordingly  provides  that  "in  actions  legal  or 
equitable,  tried  by  the  court  without  a  jury,  wherein 
a  statement  of  facts  or  bill  of  exceptions  shall  have 
been  certified,  the  evidence  of  facts  shown  by  such  bill 
of  exceptions  or  statement  of  facts  shall  be  examined 
by  the  supreme  court  de  novo,  so  far  as  the  findings 
of  fact  or  a  refusal  to  make  findings  based  thereon 
shall  have  been  excepted  to,  and  the  cause  shall  be  de- 
termined by  the  record  on  appeal,  including  such 
exceptions  or  statement.'-'8 

Since  it  is  the  office  of  a  bill  of  exceptions  merely  to 
embody  in  the  record  oral  rulings  and  such  facts,  mat- 
ters and  proceedings  as  are  material  thereto  on  appeal 
and  not  already  a  part  of  the  record,  it  follows  that 
a  bill  of  exceptions  alone  will  seldom  secure  the  review 
de  novo  of  a  cause  which  is  tried  without  a  jury.  But 
occasionally  a  bill  of  exceptions  may  secure  the  review 

7  Rem.  &  Bal.  Code,  §  388.     See  §  9,  supra. 

8  Rem.  &  Bal.  Code,  §  1736.     See  §  27,  supra. 


33  DISTINCTION  BETWEEN  THE  BILL  AND  STATEMENT.        §  40 

de  novo  of  a  cause  which  is  tried  without  a  jury;  as 
where,  for  instance,  the  alleged  errors  consist  entirely 
of  rulings  admitting  the  evidence;  that  is,  where  it  is 
contended  that  none  of  the  evidence  should  have  been 
admitted.  The  statement  in  a  case  of  this  kind  is 
properly  denominated  a  bill  of  exceptions;  for  the  rul- 
ings admitting  the  evidence  are  not  already  a  part  of 
the  record,  and  the  statute  expressly  provides  that  ''in 
actions  legal  or  equitable,  tried  by  the  court  without  a 
jury,  wherein  a  statement  of  facts  or  bill  of  exceptions 
shall  have  been  certified,  the  evidence  of  facts  shown 
by  such  bill  of  exceptions  or  statement  of  facts  shall 
be  examined  by  the  supreme  court  de  novo,  so  far  as 
the  findings  of  fact  or  a  refusal  to  make  findings  based 
thereon  shall  have  been  excepted  to,  and  the  cause 
shall  be  determined  by  the  record  on  appeal,  includ- 
ing such  exceptions  or  statement. ' ' 9 

It  also  happens  occasionally  that  a  cause  which  is 
tried  without  a  jury  cannot  be  reviewed  de  novo;  as 
where,  for  instance,  a  mistrial  has  occurred  in  the 
court  below,  and  a  review  of  the  evidence  de  novo  be- 
comes impossible  by  reason  of  errors  of  law  in  the 
exclusion  of  evidence,  and  the  cause  is  remanded  for  a 
new  trial.  In  such  cases  the  statement  is  properly  de- 
nominated a  bill  of  exceptions;  for  the  rulings  and  the 
facts,  matters  and  proceedings  material  thereto  on 
appeal  are  not  already  a  part  of  the  record.  Such  in- 
stances, however,  are  rare.10 

A  bill  of  exceptions  at  least  requires  an  oral  ruling 
which,  of  course,  is  not  already  a  part  of  the  record. 
The  facts,  matters  and  proceedings  which  are  material 
thereto  on  appeal  may,  or  may  not  be,  already  a  part 

•  Rem.  &  Bal.  Code,  §  1736.     See  §  27,  supra. 

10  See  Collins  v.  Hoffman,  62  Wash.  278,  113  Pac.  625. 


§  40      BILLS   OF   EXCEPTIONS   AND   STATEMENTS    OP   FACTS.          34 

of  the  record.  If  not  already  a  part  of  the  record, 
they  should  be  embodied  in  the  bill  of  exceptions  along 
with  the  oral  ruling. 

A  statement  of  facts  at  least  requires  facts,  matters 
and  proceedings  which  are  not  already  a  part  of  the 
record,  and  which  directly  relate  to  a  ruling  which  is 
already  a  part  of  the  record.  In  addition  to  this  it 
may,  and  usually  does,  embody  all  that  a  bill  of  excep- 
tions properly  embodies. 

The  proper  terminology  should  always  be  carefully 
employed ;  but  it  has  been  held  in  an  early  case  that  a 
palpable  misnomer  would  be  overlooked.11 

11  Miller  v.  Vermurie,  7  Wash.  386,  34  Pac.  1108,  35  Pac. 
600. 


35  PREPARATION  OP  BILL  OR  STATEMENT.  §§41,42 


CHAPTER  IV. 
THE  PREPARATION  OF  THE  BILL  OR  STATEMENT. 

§  41.  Division  of  the  Subject. 

§  42.  The  Form  of  the  Bill  or  Statement. 

§  43.  By  Whom  the  Bill  or  Statement  may  be  Prepared. 

§  44.  What  must  be  Embodied  in  the  Bill  or  Statement. 

§  45.  The  Method   of   Embodying  Depositions   and   Other 

Written  Evidence  on  File. 

§  46.  What  must  not  be  Embodied  in  the  Bill  or  Statement. 

§  47.  Costs  of  the  Preparation  of  the  Bill  or  Statement. 

§  41.  Division  of  the  Subject. — The  preparation  of 
the  bill  or  statement  will  be  considered,  (a)  With  ref- 
erence to  its  form;  (b)  By  whom  the  bill  or  statement 
may  be  prepared;  (c)  What  must  be  embodied  therein; 
(d)  The  method  of  embodying  depositions  and  other 
written  evidence  on  file;  (e)  What  must  not  be  embod- 
ied therein;  (f)  The  costs  of  the  preparation  of  the 
bill  or  statement.  And  first,  as  to 

§  42.  (a)  The  Form  of  the  Bill  or  Statement.— The 
bill  or  statement  should  be  so  framed  as  to  affirma- 
tively show  that  the  material  facts,  matters  and  pro- 
ceedings embodied  therein  actually  occurred  in  the 
cause.1 

It  is  sufficient,  though  it  be  in  the  form  of  a  narra- 
tive.2 

1  Waite  v.  Stroud,  9  Wash.  333,  37  Pac.  324. 

2  McReavy  v.  Eshelman,  4  Wash.  757 ,  31  Pac.  35 ;  Murray 
v.  Shoudy,   13  Wash.  33,  42  Pac.  631;  Herrman  v.   Great 
Northern  Ry.  Co.,  27  Wash.  472,  57  L.  R.  A.  390,  68  Pac.  82 ; 
Delaski  v.  Northwestern  Improvement  Co.,  61  Wash.  255,  112 
Pac.  341. 


§  42      BILLS  OP  EXCEPTIONS  AND  STATEMENTS   OF  FACTS.          36 

The  practice  of  presenting  the  material  facts,  mat- 
ters and  proceedings  in  the  form  of  a  narrative  is  thus 
commended  by  the  court:  "The  practice  of  bringing  a 
narrative  statement  of  the  testimony  to  this  court  is  to 
be  encouraged.  The  statement  in  the  affidavit  filed  on 
behalf  of  the  respondent,  that  more  than  one  hundred 
pages  of  the  record  have  been  reduced  to  four  pages, 
does  not,  to  our  minds,  indicate  that  it  does  not  con- 
tain all  the  material  facts  testified  to  by  the  witness. 
On  the  contrary,  it  might  still  be  subject  to  a  motion  to 
strike  for  redundancy,  for  our  experience  has  taught 
us  that  the  usual  and  ofttimes  necessary  repetitions 
and  reiterations  of  the  trial  are  not  always  essential 
to  give  this  court  a  proper  understanding  of  the 
facts."8 

The  facts,  matters  and  proceedings  which  are  prop- 
erly embodied  in  the  bill  or  statement,  excepting,  of 
course,  depositions  and  other  written  evidence  on  file, 
are  usually,  however,  noted  in  shorthand  by  a  stenog- 
rapher as  they  occur,  and  are  thereafter  reduced  by 
him  to  longhand  typewritten  notes;  and  as  thus  re- 
duced, are  proposed  and  settled  and  presented  to  the 
supreme  court. 

It  has  been  held,  however,  that  while  either  party 
has  the  right  to  have  the  testimony  of  all  the  wit- 
nesses as  fully  set  out  in  the  bill  or  statement  as  it  was 
given  in  the  court  below,  yet,  in  the  absence  of  an 
objection  after  due  notice,  the  bill  or  statement  may 
be  abridged  by  setting  out  the  testimony  of  a  certain 
witness  in  full,  and  then  saying  that  the  testimony  of 
other  witnesses  was  substantially  the  same.4 

8  State  ex  rel.  Hofstetter  v.  Sheeks,  63  Wash.  408,  115  Pac. 
859. 

*  Parker  v.  Esch,  5  Wash.  296,  31  Pac.  754. 


37  PREPARATION   OP   BILL   OR   STATEMENT.  §  42 

When  amendments  are  proposed,  the  material  facts, 
matters  and  proceedings  should  be  reduced  to  a  single 
bill  or  statement. 

The  court  thus  emphasizes  the  importance  of  this 
rule:  "These  considerations  dispose  of  the  case.  But 
it  is  deemed  proper  to  direct  attention  to  the  slovenly 
record  that  has  been  placed  before  the  court.  The 
proposed  statement  of  facts,  consisting  of  three 
pages,  was  made  and  filed  by  the  plaintiff,  and  amend- 
ments, consisting  of  three  pages,  were  thereafter  filed 
by  defendant.  There  also  appears  another  page  of 
typewritten  matter,  which  contains  interlineations  and 
erasures,  and,  as  gathered  from  a  note  upon  a  substi- 
tuted page,  is  not  part  of  the  statement,  but  seems  to 
have  been  left  in  as  a  voluntary  disturber  in  the  exam-, 
ination  of  the  facts  contained  in  the  statement.  The 
statement  of  facts  should  be  a  clean  paper,  regularly 
paged  and  in  continued  form;  and  the  practice  cannot 
be  tolerated  of  each  party  making  up  detached  papers 
in  the  form  of  a  proposed  statement,  with  amendments 
thereto,  fastening  them  together,  with  a  certificate  that 
certain  amendments  have  been  allowed  and  others  re- 
jected, and  forwarding  the  whole  mass  here  for  this 
court  to  undertake  the  labor  of  extracting  from  such 
confused  papers  what  are  the  facts. ' ' 5 

In  the  following  case  where  a  statement  of  facts  was 
proposed  by  an  appellant,  and  an  amended  statement 
purporting  to  cover  the  same  facts,  matters  and  pro- 
ceedings was  proposed  by  respondent,  and  both  were 
certified  by  the  lower  court  as  together  containing  all 
the  material  facts,  matters  and  proceedings  occurring 
in  the  cause  and  not  already  a  part  of  the  record,  the 
combined  statements  were  treated  by  the  court,  how- 

*  Greely  v.  Newcomb,  21  Wash.  357,  58  Pac.  216. 


§  42      BILLS   OF   EXCEPTIONS   AND   STATEMENTS    OF   FACTS.          38 

ever,  as  a  statement  of  facts  sufficient  in  form  in  the 
absence  of  an  objection  in  the  court  below  against  both 
being  made  a  part  of  the  record.6 

In  the  preparation  of  the  bill  or  statement  the  fol- 
lowing rule  of  the  supreme  court  should  be  carefully 
observed  and  followed: 

"Every  transcript  shall  be  plainly  typewritten  with 
a  black  record  ribbon  or  printed,  on  paper  of  good 
quality  of  the  size  of  legal  cap,  and  be  free  from  inter- 
lineations and  erasures,  and  be  duly  paged,  and 
prefixed  with  an  alphabetical  index  to  its  contents  spe- 
cifying the  page  of  each  separate  paper,  order  or  pro- 
ceeding and  of  the  testimony  of  each  witness,  and  have 
at  least  one  blank  fly-leaf.  Every  statement  of  facts 
and  bill  of  exceptions  must  also  be  printed  or  type- 
written, and  when  typewritten  none  other  than  a  black 
ribbon  copy  shall  be  used. 

11  Every  transcript  consisting  of  more  than  fifty 
leaves  shall  be  bound  under  the  direction  of  the  clerk 
of  the  supreme  court. ' ' T 

Under  this  rule  exhibits  should  be  indexed  and 
classified;  and  if  not  indexed  and  classified,  they  will 
not  be  reviewed,  especially  when  they  are  numerous.8 

The  bill  or  statement  should  be  indexed  before  it  is 
presented  to  the  supreme  court;  but  it  has  been  held  to 
be  sufficient  if  the  index  to  the  bill  or  statement  has 
been 'prepared  by  the  clerk  of  the  supreme  court,  and 
attached  at  the  request  of  an  appellant's  attorneys.9 

6  Herrman  v.  Great  Northern  Ry.  Co.,  27  Wash.  472,  57  L. 
E.  A.  390,  68  Pac.  82. 

T  Rule  III  of  the  Rules  of  the  Supreme  Court.  See  §  34, 
supra. 

8  Schell  v.  Walla  Walla,  44  Wash.  43,  86  Pac.  1114. 

•  See  Smith  v.  Glenn,  40  Wash.  262,  82  Pac.  605.  See,  also, 
Bringgold  v.  Bringgold,  40  Wash.  121,  82  Pac.  179. 


39  PREPARATION   OF   BILL   OR   STATEMENT.  §  42 

The  object  of  this  rule  is  to  facilitate  an  examina- 
tion of  the  bill  or  statement,  and  it  should  therefore 
be  carefully  observed  and  followed;  for  an  abstract  of 
evidence,  exhibits,  etc.,  is  not  allowed  either  by  statute 
or  rules  of  court.10 

Under  this  rule,  also,  the  bill  or  statement  should 
not  be  interlined." 

The  rule  is  one  which  will,  no  doubt,  be  enforced  in 
the  discretion  of  the  court;  and  should,  therefore,  be 
strictly  adhered  to. 

In  framing  the  bill  or  statement  one  should,  of 
course,  in  the  first  instance,  honestly  endeavor  to  make 
it  complete;  for  though  the  statute  prescribes  that 
errors  in  the  proposed  bill  or  statement  shall  be  cor- 
rected, and  omissions  therefrom  supplied,  by  means  of 
proposed  amendments,  it  does  not  thereby  intend  to 
sanction  the  practice  of  so  framing  the  proposed  bill 
or  statement  as  to  endeavor  to  impose  upon  an  ad- 
versary the  duty  of  supplying  any  considerable  portion 
of  the  facts,  matters  and  proceedings  which  should 
have  been  embodied  therein  in  the  first  instance.  The 
statute  contemplates  that  the  bill  or  statement  as 
originally  proposed  will  be  a  substantial  embodiment 
of  all  the  material  facts,  matters  and  proceedings  oc- 
curring in  the  cause,  and  which  are  not  already  a  part 
of  the  record.  If  it  is  not  a  substantial  bill  or  state- 
ment, that  is,  prepared  substantially  in  the  manner 
which  the  statute  contemplates,  it  is  not  sufficient  to 

10  See  Tacoma  v.  Tacoma  Light  &  Water  Co.,  16  Wash.  288, 
47  Pac.  738. 

11  See  Medcalf  v.  Bush,  4  Wash.  386,  30  Pac.  325.     In  this 
case  there  was  a  statement  which  was  interlined,  but  the  ap- 
pellant also  presented  a  perfect  statement  duly  certified  by 
the  judge  as  of  the  date  when  the  other  was  certified,  and 
moved  its  substitution  for  the  defective  statement. 


§  42      BILLS   OP  EXCEPTIONS   AND   STATEMENTS    OP   PACTS.          40 

compel  the  adversary  to  resort  to  the  statutory  rem- 
edy of  proposed  amendments;  and  he  may,  instead, 
move  that  the  proposed  bill  or  statement  be  stricken 
in  the  first  instance  where  it  is  manifest  that  the  party 
proposing  it  has  been  guilty  of  bad  faith  or  such  gross 
carelessness  as  will  amount  to  bad  faith;  and  where 
bad  faith  is  not  manifest,  but  it  is  manifest  that  the 
proposed  bill  or  statement  is  not  a  substantial  one,  he 
may  move  that  the  bill  or  statement  be  corrected  by 
the  party  proposing  it  until  it  shall  become  at  least  a 
substantial  bill  or  statement,  and  such  as  the  statute 
contemplates;  and  the  judge  may  accordingly  order 
it  to  be  corrected  as  many  times  as  may  be  necessary 
to  make  it  a  substantial  bill  or  statement;  and  if  the 
order  is  disobeyed,  may  strike  it  from  the  cause  or  re- 
fuse to  certify  it.12 

Nor  will  a  writ  of  mandate  issue  to  compel  the  cer- 
tification until  all  reasonable  demands  of  the  court 
or  judge  shall  have  been  complied  with.13 

In  whatever  form  the  bill  or  statement  is  proposed, 
the  ' '  burden  is  on  the  appellant  to  furnish  a  statement 
of  the  testimony  sufficient  to  show  the  court  the  facts 
upon  which  the  assignments  of  error  are  predicated, 
and  to  give  the  court  a  full  understanding  of  the  case. 
The  burden  cannot  be  shifted  to  the  respondent  by 
filing  an  incomplete  narrative. ' ' " 

12  State  ex  rel.  Fowler  v.  Steiner,  51  Wash.  239,  98  Pac. 
609 ;  State  ex  rel.  Roberts  v.  Clifford,  55  Wash.  440,  104  Pac. 
631.     In  this  connection,  see,  also,  the  following  early  case: 
Jones  v.  Jenkins,  3  Wash.  17,  27  Pac.  1022. 

13  State  ex  rel.  Hofstetter  v.  Sheeks,  65  Wash.  410,  118 
Pac.  308. 

14  State  ex  rel.  Hofstetter  v.  Sheeks,  63  Wash.  408,  115  Pac. 
859. 


41  PREPARATION   OP   BILL   OR   STATEMENT.  §  42 

This  rule  of  the  decisions  does  not  in  any  manner 
conflict  with  or  disregard  the  statutory  remedy  of  pro- 
posed amendments;  for  where  the  bill  or  statement  is 
stricken  in  the  first  instance  because  of  bad  faith  in 
its  preparation,  it  is  for  the  reason  that  it  is  not  a 
bill  or  statement  at  all,  but  simply  a  counterfeit  which 
has  no  legitimate  place  in  the  cause.  And  when  it  is 
stricken  for  failure  to  comply  with  the  order  or  orders 
for  its  correction,  it  is  for  the  reason  that  it  is  not 
in  substance  such  a  bill  or  statement  as  the  statute 
contemplates  should  be  proposed  in  the  first  instance, 
though  subject  to  correction  owing  to  the  absence  of 
bad  faith  in  its  preparation,  had  the  order  for  its  cor- 
rection been  complied  with.15 

The  motion  against  the  proposed  bill  or  statement 
must,  however,  be  made  in  good  faith;  that  is,  the  pro- 
posed bill  or  statement  must  be  manifestly  insufficient 
in  order  to  justify  the  motion  against  it;  for  one  will 
certainly  not  be  permitted  to  evade  the  statutory  limi- 
tation for  filing  and  serving  proposed  amendments  by 
resorting  to  a  motion  against  a  proposed  bill  or  state- 
ment which  is  manifestly  a  substantial  one,  and  there- 
fore such  as  the  statute  contemplates,  even  though  it 
may  not  be  absolutely  perfect. 

A  motion  which  goes  no  further  than  to  move  the 
striking  of  the  bill  or  statement  which  is  partly  in  the 
narrative  form,  and  the  substitution  of  the  notes  of 
the  stenographer,  is  insufficient,  and  cannot  be  aided 
by  an  affidavit  filed  in  the  supreme  court  wherein  it 
is  asserted  that  the  proposed  bill  or  statement,  in  so 

15  State  ex  rel.  Fowler  v.  Steiner,  51  Wash.  239,  98  Pac. 
609 ;  State  ex  rel.  Roberts  v.  Clifford,  55  Wash.  440,  104  Pac. 
631 ;  State  ex  rel.  Hofstetter  v.  Sheeks,  63  Wash.  408,  115  Pac. 
859 ;  State  ex  rel.  Hofstetter  v.  Sheeks,  65  Wash.  410,  118  Pac. 
308. 


§  43      BILLS   OP   EXCEPTIONS   AND   STATEMENTS    OF   PACTS.          42 

far  as  it  is  in  the  narrative  form,  is  garbled  and  inac- 
curate, and  contradictory  of  the  testimony  as  actually 
given  by  the  witnesses.  The  alleged  errors  should  be 
pointed  out.18 

When  the  motion  is,  however,  made  in  good  faith, 
it  would  seem  to  follow  that  the  beginning  of  the  time 
within  which  proposed  amendments  must  be  filed  and 
served  may  be  postponed  by  an  application  for  an 
order  requiring  that  the  proposed  bill  or  statement  be 
made  substantial.  The  motion  should,  of  course,  be 
made  before  the  expiration  of  the  time  limited  by  stat- 
ute for  the  proposal  of  amendments.  There  are,  how- 
ever, no  adjudications  upon  this  subject.17 

§  43.  (b)  By  Whom  the  Bill  or  Statement  may  be 
Prepared. — The  statute  provides  that  any  party  to 
any  action  or  proceeding  may  propose  a  bill  or  state- 
ment, and  cause  the  same  to  be  certified.18 

But  the  word  "any"  as  used  in  this  particular  stat- 
ute must  be  interpreted  in  connection  with  other  stat- 
utes, and  with  particular  decisions;  and  when  thus 
interpreted,  will  be  found  to  admit  of  two  exceptions. 

The  first  exception  is  that  the  state,  in  a  criminal 
action,  has  not  the  right  to  a  bill  of  exceptions  or  state- 
ment of  facts. 

The  statute  provides  that  "an  appeal  shall  not  be 
allowed  to  the  state  in  any  criminal  action,  except 
when  the  error  complained  of  is  in  setting  aside  the 
indictment  or  information,  or  in  arresting  the  judg- 
ment on  the  ground  that  the  facts  stated  in  the  in- 
dictment or  information  do  not  constitute  a  crime,  or 

16  State  ex  rel.  Hofstetter  v.  Sheeks,  63  Wash.  408,  115  Pac. 
859. 

17  See  §  82,  infra. 

18  Rem.  &  Bal.  Code,  §  388.     See  §  9,  supra. 


43  PREPARATION   OF   BILL   OR   STATEMENT.  §  43 

is  some  other  material  error  in  law  not  affecting  the 
acquittal  of  a  prisoner  on  the  merits. ' ' 19 

The  right  of  the  state  to  invoke  the  appellate  juris- 
diction of  the  supreme  court  in  a  criminal  action  is 
thus  so  limited  and  confined  by  statute  as  to  forbid 
it  to  present  to  the  supreme  court  any  question  whose 
consideration  will  necessitate  the  preparation  of  a  bill 
or  statement." 

The  second  exception  is  that  the  state  has  not  the 
right  to  invoke  the  appellate  jurisdiction  of  the  su- 
preme court  in  a  proceeding  for  divorce;  and  has  not 
the  right,  therefore,  to  a  bill  of  exceptions  or  state- 
ment of  facts  in  a  proceeding  for  divorce. 

Marriage  being  a  status,  the  state  is  theoretically 
considered  as  a  party  to  the  proceeding  for  divorce 
in  the  lower  court  when  the  complaint  remains  unde- 
fended; but  it  is  not  actually  named  as  a  party  in 
the  pleadings,  and  has  no  appealable  interest,  and 
therefore  is  not  entitled  to  be  heard  in  the  supreme 
court.21 

With  these  two  exceptions  any  party  to  any  action 
or  proceeding  which  is  within  the  appellate  jurisdic- 
tion of  the  supreme  court  has  the  right  to  a  bill  of 
exceptions  or  statement  of  facts  in  a  proper  case. 

But  a  bill  of  exceptions  or  statement  of  facts  which 
has  been  settled  at  the  request  of  a  party  who  has  not 

19  Rem.  &  Bal.  Code,  §  1716,  subd.  (7). 

20  See  State  v.  Wright,  60  Wash.  277,  111  Pac.  18 ;  State  v. 
Hubbell,  18  Wash.  482,  51  Pac.  1039;  State  v.  Johnson,  24 
Wash.  75,  63  Pac.  1124;  State  v.  Murrey,  30  Wash.  383,  70 
Pac.  971 ;  State  v.  Kemp,  5  Wash.  212,  31  Pac.  711 ;  State  v. 
Armstrong,  19  Wash.  706,  53  Pac.  351;  State  v.  Heron,  19 
Wash.  706,  53  Pac.  348;  Territory  v.  Lee,  3  Wash.  Ter.  396, 
17  Pac.  884. 

21  Lee  v.  Lee,  19  Wash.  355,  53  Pac.  349. 


§  44      BILLS   OF   EXCEPTIONS   AND   STATEMENTS    OF   FACTS.          44 

appealed  can  serve  no  useful  purpose  in  connection 
with  an  appeal  by  another  party,  and  will,  therefore, 
on  motion,  be  stricken  in  so  far  as  it  concerns  that 
particular  appeal.22 

A  respondent  has  been  permitted  to  substitute,  as 
proposed  amendments,  a  full  and  complete  bill  or  state- 
ment of  his  own  where  the  bill  or  statement  as  proposed 
by  appellant  was  manifestly  incomplete;  but  such  a 
course  is  unnecessary.28 

§  44.  (c)  What  Must  be  Embodied  in  the  Bill  or 
Statement. — The  review  of  a  cause  by  the  supreme 
court  must  necessarily  be  confined  to  the  record  before 
it.  It  is  therefore  self-evident  that  if  the  decision  of 
the  question  or  questions  raised  on  appeal  necessitates 
a  review  of  facts,  matters  and  proceedings  which  are 
not,  in  the  absence  of  a  bill  of  exceptions  or  statement 
of  facts,  a  part  of  the  record  of  the  cause,  such  facts, 
matters  and  proceedings  must  be  embodied  in  a  bill 
of  exceptions  or  statement  of  facts  in  order  that  the 
supreme  court  may  be  enabled  to  review  the  question 
or  questions  raised. 

Thus,  the  misconduct  of  a  prosecuting  attorney  or 
his  deputy  cannot  be  considered  on  appeal  unless  the 
facts  in  relation  thereto  have  been  found  by  the  lower 
court  and  made  a  part  of  the  record  by  a  bill  of  excep- 
tions or  statement  of  facts.24 

Thus,  also,  where  judgment  is  rendered  on  the 
pleadings  and  on  the  oral  admissions  of  the  parties 
made  in  open  court,  the  judgment  will  be  presumed 
to  be  correct  when  such  oral  admissions  have  not  been 

22  Lauridsen  v.  Lewis,  47  Wash.  594,  92  Pac.  440. 
28  See  Jones  v.  Jenkins,  3  Wash.  17,  27  Pac.  1022. 
24  State  v.  Greer,  11  Wash.  244,  39  Pac.  874. 


45  PREPARATION   OF   BILL   OR   STATEMENT.  §  44 

made  a  part  of  the  record  on  appeal  by  a  bill  of  excep- 
tions or  statement  of  facts.25 

Stipulations  and  other  proceedings  occurring  in  the 
court  below,  and  not  already  a  part  of  the  record,  and 
which  have  not  been  made  a  part  of  the  record  by  a 
bill  of  exceptions  or  statement  of  facts,  will  not  be 
considered.28 

It  has  been  held  that  purported  copies  of  a  motion 
and  affidavit  for  continuance,  also  purported  state- 
ments of  the  prosecuting  attorney  to  the  jury,  and 
certain  papers  purporting  to  have  been  used  upon  a 
motion  for  a  new  trial,  not  made  a  part  of  the  record 
by  a  bill  of  exceptions  or  statement  of  facts,  will  be 
stricken  on  motion  from  the  cause.27 

Oral  instructions  not  made  a  part  of  the  record  on 
appeal  by  bill  of  exceptions  or  statement  of  facts 
cannot  be  considered.28 

Alleged  error  on  the  part  of  the  trial  court  in  grant- 
ing a  new  trial  on  the  ground  that  the  evidence  was 
insufficient  to  justify  the  verdict  will  not  be  considered 
when  the  evidence  has  not  been  embodied  in  a  bill 
of  exceptions  or  statement  of  facts.29 

An  order  granting  a  new  trial  because  of  the  alleged 
incompetency  of  certain  testimony  admitted  in  evi- 
dence will  not  be  reviewed  on  appeal  when  there  is  no 
bill  of  exceptions  nor  statement  of  facts  embodying 
the  material  evidence.80 

25  Byers  v.  Rothschild,  11  Wash.  2%,  39  Pac.  688. 

26  Winsor  v.  McLachlan,  12  Wash.  154,  40  Pac.  727. 

27  State  v.  Howard,  15  Wash.  425,  46  Pac.  650. 

28  State  v.  Nichols,  15  Wash.  1,  45  Pac.  647. 

29  Pincua  v.  Puget  Sound  Brewing  Co.,  18  Wash.  108,  50 
Pac.  930. 

«°  Linder  v.  Newman,  18  Wash.  481,  51  Pac.  1039. 


§  44      BILLS   OP   EXCEPTIONS   AND   STATEMENTS    OF    FACTS.          46 

Alleged  error  relating  to  instructions  will  not  be 
considered  on  appeal  in  the  absence  of  a  bill  of  excep- 
tions or  statement  of  facts  embodying  all  the  material 
evidence  relating  thereto." 

Alleged  error  in  the  admission  of  incompetent  testi- 
mony on  cross-examination  cannot  be  considered  when 
the  record  does  not  contain  the  direct  testimony  upon 
which  the  cross-examination  was  based.32 

Assignment  of  error  in  the  admission  of  evidence 
varying  the  terms  of  a  written  contract  will  not  be 
considered  when  the  evidence  is  not  brought  up  by 
a  bill  of  exceptions  or  statement  of  facts.33 

Exceptions  to  instructions  given,  or  to  a  refusal  to 
give  requested  instructions,  should  be  embodied  in  the 
bill  or  statement  when  the  giving  of  the  instructions 
or  the  refusal  to  give  those  requested  is  assigned  as 
error.84 

Either  party,  at  any  time  before  the  hearing  of  a 
motion  for  a  new  trial,  may  except  to  the  instructions 
given  by  the  court,  or  any  part  thereof.36 

It  may  be  stated  as  a  general  rule  that  whenever 
the  decision  of  questions  raised  on  appeal  necessitates 
a  review  of  any  evidence,  such  evidence,  unless  it  is 

81  State  v.  Johnny  Tommy,  19  Wash.  270,  53  Pac.  157; 
Thompson  v.  Territory,  1  Wash.  Ter.  548 ;  State  v.  Rourk,  44 
Wash.  464,  87  Pac.  507;  Morgan  v.  Bankers'  Trust  Co.,  63 
Wash.  476,  115  Pac.  1047;  Morgan  v.  Bankers'  Trust  Co., 
supra,  on  rehearing,  24  Wash.  Dec.  429,  119  Pac.  1116. 

82  Maitland  v.  Zanga,  14  Wash.  92,  44  Pac.  117. 

83  Rehlow  v.  Schmitt,  63  Wash.  666,  116  Pac.  267. 

34  See  State  v.  Rourk,  44  Wash.  464,  87  Pac.  507 ;  Rem.  & 
Bal.  Code,  §  384.     See  §  5,  supra. 

35  Rem.  &  Bal.  Code,  §  339,  subd.  (4)  j  Sess.  Laws  1909,  p. 
184,  §  1,  subd.  (4) .     See  §  31,  supra. 


47  PREPARATION   OF   BILL   OR   STATEMENT.  §  44 

already  a  part  of  the  record,  must  be  embodied  in  a 
bill  of  exceptions  or  statement  of  facts.36 

Affidavits  which  are  used  as  evidence  in  the  lower 
court,  and  which  are  not  already  a  part  of  the  record, 

36  Carstens  v.  McReavy,  1  Wash.  359,  25  Pac.  471 ;  Ferry  v. 
King  County,  2  Wash.  337,  26  Pac.  537 ;  Rathbun  v.  Thurston 
County,  2  Wash.  564,  27  Pac.  448 ;  Enos  v.  Wilcox,  3  Wash. 
44,  28  Pac.  364 ;  Cadwell  v.  First  Nat.  Bank,  3  Wash.  188,  28 
Pac.  365 ;  Howard  v.  Ross,  3  Wash.  292,  28  Pac.  528 ;  Harker 
v.  Crosby,  3  Wash.  377,  28  Pac.  745;  Stenger  v.  Roeder,  3 
Wash.  412,  28  Pac.  748,  29  Pac.  211 ;  McNatt  v.  Harmon,  3 
Wash.  432,  28  Pac.  748 ;  Wheeler  v.  Lager,  3  Wash.  732,  29 
Pac.  453 ;  Francioli  v.  Brue,  4  Wash.  124,  29  Pac.  928 ;  Coats 
v.  West  Coast  Fire  &  Marine  Ins.  Co.,  4  Wash.  375,  30  Pac. 
404,  850;  McKinnon  v.  Kingston  Land  &  Improvement  Co.,  4 
Wash.  535,  30  Pac.  642;  McCarty  v.  Hayden,  4  Wash.  537,  30 
Pac.  637 ;  Tacoma  Foundry  &  Machinery  Co.  v.  Wolff,  4  Wash. 
818,  30  Pac.  1053 ;  Whittier  v.  Cadwell,  4  Wash.  819,  820,  30 
Pac.  1097,  1098 ;  Gilbranson  v.  Squier,  5  Wash.  99,  31  Pac. 
423 ;  Smith  v.  State,  5  Wash.  273,  31  Pac.  865 ;  Link  v.  Bosse, 
5  Wash.  491,  31  Pac.  599 ;  Fife  v.  Olson,  5  Wash.  789,  32  Pac. 
766;  Bently  v.  Port  Townsend  Hotel  &  Improvement  Co.,  6 
Wash.  296,  32  Pac.  1072 ;  Kirby  v.  Collins,  6  Wash.  297,  32 
Pac.  1060 ;  Case  v.  Ham,  9  Wash.  54,  36  Pac.  1050 ;  Blackwell 
v.  McLean,  9  Wash.  301,  37  Pac.  317 ;  Gaffney  v.  Megrath,  11 
Wash.  456,  39  Pac.  973 ;  Winsor  v.  McLachlan,  12  Wash.  154, 
40  Pac.  727;  State  v.  Robinson,  12  Wash.  491,  41  Pac.  884; 
State  ex  rel.  Van  Name  v.  Board  of  Directors,  14  Wash.  222, 

44  Pac.  270;  Taylor  v.  City  Council  of  Tacoma,  15  Wash.  92, 

45  Pac.   641;  State  v.  Zettler,  15  Wash.  625,  47  Pac.  35; 
Bernier  v.  Bernier,  17  Wash.  689,  50  Pac.  495 ;  Pincus  v.  Puget 
Sound  Brewing  Co.,  18  Wash.  108,  50  Pac.  930;  Linder  v. 
Newman,  18  Wash.  481,  51  Pac.  1039 ;  State  v.  Johnny  Tommy, 
19  Wash.  270,  53  Pac.  157 ;  State  v.  Anderson,  20  Wash.  193, 
55  Pac.  39 ;  State  v.  Webb,  20  Wash.  500,  55  Pac.  935 ;  State 
v.  Morgan,  20  Wash.  708,  54  Pac.  936 ;  Greely  v.  Newcomb.  21 


§  44      BILLS   OF   EXCEPTIONS   AND   STATEMENTS   OP   FACTS.          48 

must  be  embodied  in  a  bill  of  exceptions  or  statement 
of  facts  whenever  the  question  or  questions  raised  on 
appeal  will  necessitate  a  review  thereof. 

Thus,  affidavits  used  in  support  of  a  petition  for 
the  appointment  of  a  receiver,  and  which  are  not 
already  a  part  of  the  record,  will  not  be  considered 

Wash.  357,  58  Pac.  216 ;  Van  Brocklin  v.  Queen  City  Printing 
Co.,  21  Wash.  447,  58  Pac.  575 ;  State  v.  Jasper,  21  Wash.  707, 
57  Pac.  796 ;  Schlotf  eldt  v.  Bull,  22  Wash.  362 ,  60  Pac.  1126 ; 
In  re  Alfstad's  Estate,  27  Wash.  175,  67  Pac.  593;  Thacker 
Wood  &  Mfg.  Co.  v.  Mallory,  27  Wash.  670,  68  Pac.  199 ;  Gay 
v.  Havermale,  30  Wash.  622,  71  Pac.  190;  Pierce  v.  Fawcett, 
31  Wash.  271,  71  Pac.  1011 ;  Demaris  v.  Barker,  33  Wash.  200, 
74  Pac.  362;  Corbin  v.  McDermott,  33  Wash.  212,  74  Pac.  361 ; 
State  v.  Howard,  33  Wash.  250,  74  Pac.  382 ;  Dibble  v.  Seattle 
Electric  Co.,  33  Wash.  596,  74  Pae.  807 ;  Hoskins  v.  Barker,  33 
Wash.  706,  74  Pac.  1135 ;  Port  Townsend  v.  Lewis,  34  Wash. 
413,  75  Pac.  982 ;  State  v.  Ryan,  34  Wash.  597,  76  Pac.  90 ; 
Kane  v.  Kane,  35  Wash.  517,  77  Pac.  842;  Swope  v.  Seattle,  36 
Wash.  114,  78  Pac.  607;  Barto  v.  Stanley,  36  Wash.  150,  78 
Pac.  791 ;  Spencer  v.  Commercial  Company,  36  Wash.  374,  78 
Pac.  914;  State  ex  rel.  Cook  v.  Eeed,  36  Wash.  638,  79  Pac. 
306 ;  Osburn  v.  Pioneer  Mutual  Ins.  Assn.,  36  Wash.  695,  79 
Pac.  286 ;  Caughey  v.  Rien,  37  Wash.  296,  79  Pac.  925 ;  Poor 
v.  Cudihee,  37  Wash.  609,  79  Pac.  1105;  In  re  Holburte's 
Estate,  38  Wash.  199,  80  Pac.  294 ;  McNeilly  v.  McNeilly,  38 
Wash.  401,  80  Pac.  541 ;  Chelan  County  v.  Navarre,  38  Wash. 
684,  80  Pac.  845 ;  Collier  v.  Great  Northern  Ry.  Co.,  40  Wash. 
639,  82  Pac.  935 ;  State  v.  Packenham,  40  Wash.  403,  82  Pac. 
597 ;  Dawson  v.  Dawson,  40  Wash.  656,  82  Pac.  937 ;  Rice  v. 
Pershall,  41  Wash.  73,  82  Pac.  1038 ;  State  ex  rel.  Richardson 
v.  Superior  Court,  41  Wash.  439,  83  Pac.  1027 ;  Wiltsie  v. 
Young,  41  Wash.  570,  84  Pac.  602;  The  Hotel  Co.  v.  Mer- 
chants' Ice  &  Fuel  Co.,  41  Wash.  620,  84  Pac.  402;  Meyer  v. 
Beyer,  43  Wash.  368,  86  Pac.  661 ;  Mahncke  v.  Mahncke,  43 
Wash.  425,  86  Pac.  645;  Cantwell  v.  Nunn,  45  Wash.  536,  88 


49  PREPARATION   OF   BILL,   OR   STATEMENT.  §  44 

unless  embodied  in  a  bill  of  exceptions  or  statement  of 
facts.87 

Affidavits  used  in  support  of  a  motion  for  a  new 
trial.38 

Pac.  1023 ;  Ramsdell  v.  Ramsdell,  47  Wash.  444,  92  Pac.  278 ; 
Cunningham  v.  Lakin,  50  Wash.  394,  97  Pac.  447 ;  Adams  v. 
Columbia  Canal  Co.,  51  Wash.  297,  98  Pac.  741;  Loeper  v. 
Deeper,  51  Wash.  682,  99  Pac.  1029,  100  Pac.  1135 ;  Gould  v. 
Austin,  52  Wash.  457, 100  Pac.  1029 ;  Half  a  v.  Crisp,  52  Wash. 
509,  100  Pac.  1012 ;  Clambey  v.  Copland,  52  Wash.  580,  100 
Pac.  1031;  Pierce  v.  Pierce,  52  Wash.  679,  101  Pac.  358; 
Coughlin  v.  Holmes,  53  Wash.  692,  102  Pac.  772;  Staats  v. 
Pioneer  Ins.  Assn.,  55  Wash.  51,  104  Pac.  185;  Lohman  v. 
Claussen,  55  Wash.  408,  104  Pac.  624;  Pack  v.  Peabody,  58 
Wash.  76, 107  Pac.  839.  See  State  v.  Newcomb,  58  Wash.  414, 
109  Pac.  355,  a  capital  case  where  the  rule  was  relaxed.  In 
further  support  of  the  rule,  see  Cameron  v.  Burke,  61  Wash. 
203,  112  Pac.  252. 

"  Clay  v.  Selah  Valley  Irr.  Co.,  14  Wash.  543,  45  Pac.  141 ; 
Norfor  v.  Busby,  19  Wash.  450,  53  Pac.  715 ;  Hannon  v.  Milli- 
champ,  40  Wash.  118,  82  Pac.  168 ;  Kennedy  Drug  Co.  v.  Keyes 
Drug  Co.,  58  Wash.  499,  109  Pac.  56. 

88  Fox  v.  Territory,  2  Wash.  Ter.  297,  5  Pac.  603 ;  State  v. 
Humason,  5  Wash.  499,  32  Pac.  Ill;  State  v.  Howard,  15 
Wash.  425,  46  Pac.  650;  State  v.  Anderson,  20  Wash.  193,  55 
Pac.  39 ;  Nelson  v.  Seattle  Traction  Co.,  25  Wash.  602,  66  Pac. 
61 ;  Shuey  v.  Holmes,  27  Wash.  489,  67  Pac.  1096 ;  Griggs  v. 
MacLean,  33  Wash.  244,  74  Pac.  360;  State  v.  Yandell,  34 
Wash.  409,  75  Pac.  988;  Rice  Fisheries  Co.  v.  Pacific  Realty 
Co.,  35  Wash.  535,  77  Pac.  839 ;  Carstens  v.  Alaska  Steamship 
Co.,  39  Wash.  229,  81  Pac.  691 ;  Taylor  v.  Modern  Woodmen 
of  America,  42  Wash.  304,  7  Ann.  Cas.  607,  84  Pac.  867 ;  State 
v.  Dalton,  43  Wash.  278,  86  Pac.  590;  State  v.  Stapp,  65  Wash. 
438,  118  Pac.  337. 

A 


§  44      BILLS   OP   EXCEPTIONS   AND   STATEMENTS    OP   FACTS.          50 

Under  early  statutes  affidavits  used  in  support  of 
a  motion  for  a  new  trial  were  part  of  the  record  with- 
out a  bill  of  exceptions  or  statement  of  facts.38 

Affidavits  used  in  support  of  a  motion  for  a  con- 
tinuance.40 

The  rule  has  also  been  applied  in  the  following  cases : 

Affidavits  used  in  support  of  a  petition  for  a  writ  of 
habeas  corpus" 

Affidavits  used  in  support  of  a  motion  to  set  aside 
a  default  and  judgment.42 

Affidavits  used  in  support  of  a  motion  to  quash  a 
writ  of  garnishment.** 

Affidavits  used  in  support  of  a  motion  to  dismiss.4* 

39  Anderson  v.  State,  2  Wash.  183,  26  Pac.  267.     In  further 
support  of  the  rule,  see  Haines  &  Spencer  v.  Kelley,  57  Wash. 
219,  106  Pac.  776. 

40  State  v.  Howard,  15  Wash.  425,  46  Pac.  650 ;  State  v. 
Johnny  Tommy,  19  Wash.  270,  53  Pac.  157 ;  Soder  v.  Adams 
Hardware  Co.,  38  Wash.  607,  80  Pac.  775 ;  Gray  v.  Granger, 
48  Wash.  442,  93  Pac.  912 ;  State  v.  Lee  Wing  Wah,  53  Wash. 
294,  101  Pac.  873. 

41  Armstrong  v.  Van  De  Vanter,  21  Wash.  682,  59  Pac.  510. 

42  Spokane  Falls  v.   Curry,   2  Wash.   541,   27   Pac.   477; 
Whidby  Land  &  Development  Co.  v.  Nye,  5  Wash.  301,  31 
Pac.  752 ;  Chevalier  &  Co.  v.  Wilson,  30  Wash.  227,  70  Pac. 
487 ;  Whitney  v.  Knowlton,  33  Wash.  319,  74  Pac.  469 ;  Sellers 
v.  Pacific  Wrecking  &  Salvage  Co.,  34  Wash.  Ill,  74  Pac. 
1056;   Spoar  v.   Spokane  Turn-Verein,   64  Wash.   208,   116 
Pac.  627. 

43  McDonald  v.  Downing,  52  Wash.  394,  100  Pac.  834. 

44  Zindorf  Construction  Co.  v.  Western  American  Co.,  27 
Wash.  31,  67  Pac.  374;  Rehmke  v.  Fogarty,  57  Wash.  412, 
107  Pac.  184. 


51  PREPARATION   OP   BILL   OR   STATEMENT.  §  44 

Affidavits  used  in  support  of  a  motion  to  discharge 
an  attachment.4' 

Affidavits  used  in  support  of  a  motion  for  a  writ  of 
assistance.48 

Affidavits  introduced  as  evidence  at  the  trial  of  a 
cause.47 

Affidavits  used  in  support  of  a  motion  to  dissolve 
a  temporary  injunction.48 

Affidavits  used  in  support  of  an  application  for  leave 
to  sue  a  receiver.4' 

Affidavits  used  in  support  of  an  application  for  a 
change  of  venue.60 

Affidavits  used  in  support  of  an  application  for  a 
temporary  restraining  order,  and  affidavits  used  in 
support  of  an  application  for  a  temporary  injunction.81 

Affidavits  used  in  support  of  a  motion  to  quash  the 
service  of  a  summons.52 

Thus,  also,  the  fact  that  demonstrations  of  approval 
at  the  close  of  the  argument  for  the  prosecution  were 

45  Windt  v.  Banniza,  2  Wash.  147,  26  Pac.  189 ;  McDonald 
v.  Downing,  52  Wash.  394,  100  Pac.  834. 

*•  Jacobson  v.  Lunn,  16  Wash.  487,  48  Pac.  237. 

47  State  v.  Wood,  33  Wash.  290,  74  Pac.  380. 

48  Anderson  v.  McGregor,  36  Wash.  124,  78  Pac.  776. 

49  Whitehouse  v.  Nelson  Dry  Goods  Co.,  40  Wash.   189, 
82  Pac.  161. 

60  Allen  v.  Baxter,  42  Wash.  434,  85  Pac.  26. 

81  Shorno  v.  Doak,  45  Wash.  613,  88  Pac.  1113.  See,  also, 
Heffner  v.  Board  of  County  Commissioners  of  Snohomish 
County,  16  Wash.  273,  47  Pac.  430,  where  the  affidavits  were 
properly  brought  up,  and  the  general  rule  was  recognized. 

52  McCart  v.  Racine  Woolen  Mills,  48  Wash.  314,  93  Pac. 
517 ;  Swanson  v.  Pacific  Shipping  Co.,  60  Wash.  87,  110  Pac. 
795. 


§  44      BILLS  OP   EXCEPTIONS  AND  STATEMENTS   OP  PACTS.          52 

made  by  persons  present  cannot  be  considered  when 
there  is  no  showing  by  a  bill  of  exceptions  or  state- 
ment of  facts  as  to  what  the  demonstrations  were,  and 
no  showing  that  the  court  had  been  requested  to  take 
any  action  thereon." 

In  the  absence  of  a  bill  of  exceptions  or  statement  of 
facts  showing  the  circumstances  under  which  a  judg- 
ment was  rendered,  the  supreme  court  will  not  disturb 
the  action  of  the  trial  court  in  entering  judgment  in 
excess  of  the  verdict  of  a  jury.  Error  will  not  be  pre- 
sumed.5* 

Improper  argument  of  counsel  cannot  be  considered 
on  appeal  when  the  record  fails  to  show  the  impro- 
priety.55 

Such  impropriety  should  be  shown  by  a  bill  of  ex- 
ceptions or  statement  of  facts.58 

Records  in  other  causes  are  not  judicially  noticed; 
and  when  necessary  to  secure  a  review  of  the  question 
or  questions  raised  on  appeal,  must  be  introduced  in 
the  lower  court,  and  embodied  in  a  bill  of  exceptions 
or  statement  of  facts.67 

53  State  v.  Anderson,  20  Wash.  193,  55  Pac.  39. 

84  Carpenter  v.  Barry,  26  Wash.  255,  66  Pac.  393. 

55  Cogswell  v.  West  Street  &  North  End  Electric  Ry.  Co., 
5  Wash.  46,  31  Pac.  411 ;  State  v.  Greer,  11  Wash.  244,  39 
Pac.  874;  State  v.  Young,  13  Wash.  584,  43  Pac.  881;  State 
v.  McGonigle,  14  Wash.  594,  45  Pac.  20;  Shoemaker  v. 
Bryant  Lumber  &  Shingle  Mill  Co.,  27  Wash.  637,  68  Pac. 
380. 

86  State  v.  Snails,  63  Wash.  172,  115  Pae.  82.  See,  also, 
Cohen  v.  Drake,  13  Wash.  102,  42  Pac.  529. 

57  Bartelt  v.  Seehorn,  25  Wash.  261,  65  Pac.  185 ;  Plumley 
v.  Simpson,  31  Wash.  147,  71  Pac.  710;  Sweeney  v.  Water- 
house  &  Co.,  43  Wash.  613,  86  Pac.  946.  See,  also,  Downs 
v.  Seattle  &  Montana  Ry.  Co.,  5  Wash.  778,  32  Pac.  745,  33 
Pac.  973. 


53  PREPARATION   OP   BILL   OR   STATEMENT.  §  44 

When  the  question  raised  on  appeal  relates  to  an 
opening  statement  of  counsel,  such  opening  statement 
must  be  embodied  in  a  bill  of  exceptions  or  statement 
of  facts.88 

An  appeal  was  dismissed  in  one  case  because  of  the 
absence  of  a  bill  of  exceptions  or  statement  of  facts 
where  the  appellant  sought  the  review  only  of  a  ques- 
tion of  law  on  the  pleadings  as  to  whether  the  action 
appeared  therefrom  to  have  been  commenced  in  time, 
and  where  the  judgment  of  the  court  recited  that  the 
decision  was  based  on  other  matters  before  the  court 
as  well  as  upon  the  application  of  the  statute  of  limita- 
tions to  the  facts  pleaded.59 

The  exclusion  of  record  evidence  cannot  be  con- 
sidered on  appeal  when  such  evidence  was  not  formally 
offered  on  the  trial  and  is  not  brought  up  by  a  bill 
of  exceptions  or  statement  of  facts.80 

In  a  late  case  where  the  evidence  which  was  formally 
offered  on  the  trial  and  excluded  was  properly  brought 
up  it  was  held  that,  owing  to  the  exclusion  of  the  evi- 
dence, it  was  not  in  the  cause,  and  could  not  be  con- 
sidered by  the  court;  that  respondent's  right  to  meet 
it  in  any  proper  way  should  not  be  foreclosed ;  and  that, 
therefore,  there  was  a  mistrial;  and  the  cause  was  ac- 
cordingly remanded  for  a  new  trial.*1 

It  has  been  held  that  a  party  will  be  excused  for 
failure  to  include  in  the  bill  or  statement  matters 
which  are  contained  in  public  records  which  the  lower 

88  Johnson  v.  City  of  Spokane,  29  Wash.  730,  70  Pac.  122. 
See,  also,  Ballard  v.  Mitchell,  38  "Wash.  239,  80  Pac.  440; 
Richardson  v.  Carbon  Hill  Coal  Co.,  10  Wash.  648,  39  Pac. 
95. 

"  Pierce  v.  Fawcett,  31  Wash.  271,  71  Pac.  1011. 

60  Nunn  v.  Jordan,  31  Wash.  506,  72  Pac.  124. 

91  See  Collins  v.  Hoffman,  62  Wash.  278,  113  Pac.  625. 


§  44      BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OP   PACTS.          54 

court  purported  to  admit,  when  the  court  thereafter 
allows  them  to  be  taken  away,  and  refuses  to  allow 
them  to  remain  in  the  files  of  the  cause,  upon  the 
ground  that  they  were  not,  under  such  circumstances, 
admitted.82 

It  seems  to  be  intimated  in  the  above  case  that  a 
party  would  be  excused  in  any  event  from  including 
in  the  bill  or  statement  matters  which  are  contained  in 
public  records  unless  he  was  first  given  an  opportunity 
of  supplying  the  record. 

It  may  with  propriety  be  here  observed  that  a  party 
always  has  such  an  opportunity;  and  it  is  no  doubt 
the  proper  practice  to  obtain  permission  of  the  court, 
at  the  time  when  the  original  records  are  admitted,  to 
substitute  certified  copies  in  case  of  an  appeal. 

Rules  of  practice  of  the  superior  courts  are  not  judi- 
cially noticed  by  the  supreme  court;  and  when  such 
rules  are  necessary  to  a  review  of  a  cause  on  appeal, 
they  must  be  made  a  part  of  the  record  by  a  bill  of  ex- 
ceptions or  statement  of  facts.'* 

In  proceedings  supplemental  to  execution,  the  issu- 
ance of  an,  execution  is  a  jurisdictional  step  necessary 
to  sustain  such  proceedings  and  cannot  be  waived,  as 
such  proceedings  are  held  to  be  in  rem;  and  while  the 
lower  court  will  take  judicial  notice  of  the  fact  that 
an  execution  has  been  issued  in  his  own  court,  the 
supreme  court  will  not  do  so,  as  it  acts  solely  upon  the 
record  before  it.  And  it  has  been  held  that  when  the 
affidavit  does  not  state  that  an  execution  has  been  is- 

62  Gehres  v.  Wallace,  38  Wash.  101,  80  Pac.  273. 

••  Waite  v.  Wingate,  4  Wash.  324,  30  Pac.  81.  See  the 
following  very  early  case  in  which  it  was  said  that  they  are 
a  part  of  the  record  of  the  lower  court  and  should  be  certi- 
fied as  such:  Walla  Walla  Printing  &  Publishing  Co.  v. 
Budd,  2  Wash.  Ter.  336,  3  Pac.  602. 


55  PREPARATION   OF  BILL   OR  STATEMENT.  §  44 

sued,  the  fact  must  be  shown  by  a  bill  of  exceptions  or 
statement  of  facts.84 

In  an  early  case  it  was  held  that  the  refusal  of  the 
court  to  grant  a  motion  for  a  default  for  failure  to 
answer  within  the  prescribed  time  will  be  presumed 
to  have  been  based  upon  a  showing  of  good  and  suffi- 
cient cause  therefor  in  the  absence  of  a  bill  of  excep- 
tions or  statement  of  facts  setting  forth  the  fact  that 
the  ruling  was  made  without  any  showing  by  the  de- 
fendants in  opposition  thereto.65 

It  was  also  held  in  an  early  case  that  in  the  absence 
of  any  showing  in  a  bill  of  exceptions  or  statement  of 
facts  that  the  appointment  of  a  guardian  ad  litem  for 
certain  children  was  made  without  any  application 
therefor  on  their  part,  it  will  be  presumed  that  the 
appointment  was  regularly  made.66 

The  overruling  of  a  motion  for  a  new  trial  for  newly 
discovered  evidence  will  not  be  disturbed  when  the 
showing  made  is  not  embodied  in  a  bill  of  exceptions 
or  statement  of  facts.67 

In  the  absence  of  a  bill  of  exceptions  or  statement  of 
facts  the  supreme  court  cannot  review  the  action  of 
the  lower  court  in  denying  an  application  by  a  mother 
for  provision  for  the  support  of  children,  awarded  to 
her  upon  an  appeal  to  the  supreme  court,  by  which 
appeal  the  cause  had  been  remanded  with  directions 
to  the  lower  court  to  make  such  provision  as  it  deemed 
necessary,  with  other  discretionary  powers.68 

When  an  objection  is  raised  to  the  absence  of  a  de- 
fendant in  a  criminal  case  during  the  examination  of 

64  Timm  v.  Stegman,  6  Wash.  13,  32  Pac.  1004. 

65  Mason  v.  McLean,  6  Wash.  31,  32  Pac.  1006. 
88  Mason  v.  McLean,  6  Wash.  31,  32  Pac.  1006. 

67  Seattle  Lumber  Co.  v.  Sweeney,  43  Wash.  1,  85  Pac.  677. 
•8  Kane  v.  Miller,  43  Wash.  354,  86  Pac.  568. 


§44      BILLS  OP  EXCEPTIONS  AND   STATEMENTS  OP   FACTS.          56 

a  portion  of  the  jury,  such  absence  should  be  shown 
by  a  bill  of  exceptions  or  statement  of  facts,  if  it  does 
not  otherwise  appear  of  record,  and  cannot  be  shown 
by  affidavits  filed  in  the  supreme  court.69 

When  an  objection  is  raised  to  a  special  venire  of 
twelve  jurors  upon  the  ground  that  a  thirteenth  man 
was  substituted  by  the  sheriff  for  a  juror  who  was 
excused,  the  substitution  should  be  shown  by  a  bill 
of  exceptions  or  statement  of  facts  when  it  does  not 
otherwise  appear  of  record.70 

A  challenge  to  a  juror  cannot  be  reviewed  unless  all 
nonrecord  matters  relating  to  the  challenge  are  em- 
bodied in  a  bill  of  exceptions  or  statement  of  facts.71 

An  alleged  error  relating  to  the  oath  of  a  jury 
should  be  shown  by  embodying  in  a  bill  of  exceptions 
or  statement  of  facts  all  facts,  matters  and  proceedings 
upon  which  the  alleged  error  is  based.72 

The  revocation  of  letters  of  administration  will  not 
be  reviewed  in  the  absence  of  a  bill  of  exceptions  or 
statement  of  facts  showing  all  nonrecord  matters  which 
are  material  to  a  review  of  the  alleged  error.73 

Upon  appeal  from  an  order  appointing  a  receiver, 
the  pleadings  will  be  deemed  amended  in  the  absence 
of  a  bill  of  exceptions  or  statement  of  facts  embodying 
the  evidence.74 

Judgment  by  default  for  not  answering  within  the 
time  prescribed  by  the  rules  of  court  after  the  over- 
ruling of  a  demurrer  to  the  complaint  will  not  be  dis- 
turbed on  appeal  when  there  is  nothing  in  the  record 

«9  State  v.  Holmes,  12  Wash.  169,  40  Pac.  735,  41  Pac.  887. 

70  State  v.  Shuck,  38  Wash.  270,  80  Pac.  444. 

71  McAllister  v.  Territory,  1  Wash.  Ter.  360. 

72  Hartigan  v.  Territory,  1  Wash.  Ter.  447. 

TS  Farnham's  Estate,  In  re,  41  Wash.  570,  84  Pac.  602. 
T4  Cole  v.  Price,  22  Wash.  18,  60  Pac.  153. 


57  PREPARATION   OP  BILL,   OR   STATEMENT.  §  44 

showing  that  the  appellant  was  entitled  to  an  extension 
of  time  for  answering.75 

In  the  absence  of  a  bill  of  exceptions  or  statement  of 
facts  embodying  the  evidence,  a  judgment  denying  a 
writ  of  mandate  will  not  be  disturbed  even  though  a 
complete  defense  may  not  have  been  interposed  by 
answer  or  demurrer.76 

An  objection  that  oral  instructions  were  given 
cannot  be  considered  when  the  record  fails  to  show 
that  any  were  given  orally.77 

When  the  alleged  error  is  a  misjoinder  of  causes  of 
action  not  appearing  upon  the  face  of  the  record,  all 
material  nonrecord  matters  showing  the  misjoinder 
should  be  embodied  in  a  bill  of  exceptions  or  statement 
of  facts." 

The  separation  of  the  jury  when  urged  as  error 
should  be  shown  by  a  bill  of  exceptions  or  statement 
of  facts  when  it  does  not  otherwise  appear  of  record.79 

Alleged  error  of  the  lower  court  in  admitting  a  letter 
in  evidence  cannot  be  considered  when  neither  the 
letter  nor  its  contents  are  embodied  in  a  bill  of  excep- 
tions or  statement  of  facts.80 

Exceptions  to  a  cost  bill  cannot  be  reviewed  where 
the  evidence  on  the  hearing  is  not  brought  up  by  a 
bill  of  exceptions  or  statement  of  facts,  and  counsel 
do  not  agree  as  to  what  matters  were  considered  by  the 
court.81 

78  Ferguson  v.  Hoshi,  25  Wash.  664,  66  Pac.  105. 
Ta  Wilson  v.  Aberdeen,  25  Wash.  614,  66  Pac.  95. 

77  Hall  v.  Union  Central  Life  Ins.  Co.,  23  Wash.  610,  83 
Am.  St.  Rep.  844,  51  L.  E.  A.  288,  63  Pac.  505. 

19  Huggins  v.  Sutherland,  39  Wash.  552,  82  Pac.  112. 

79  Maling  v.  Crummey,  5  Wash.  222,  31  Pac.  600. 

80  Cozard  v.  Cozard,  48  Wash.  124,  92  Pac.  935. 

'81  Ames  v.  Farmers  &  Mechanics'  Bank,  48  Wash.  328,  93 
Pac.  530. 


§  44      BILLS   OP  EXCEPTIONS   AND   STATEMENTS   OP   PACTS.          58 

When  no  objection  has  been  made  to  the  sufficiency 
of  a  pleading  in  the  lower  court,  and  its  sufficiency  is 
challenged  in  the  supreme  court,  the  evidence  should 
be  brought  to  the  appellate  court  by  a  bill  of  excep- 
tions or  statement  of  facts,  when  evidence  has  been 
introduced  in  the  cause,  and  a  judgment  rendered,  in 
order  to  show  that  the  defect  has  not  been  cured.  If 
the  evidence  is  not  so  brought  to  the  appellate  court, 
the  pleading  will  be  construed  with  every  intendment 
in  its  favor.82 

The  statute  provides  that  "depositions  and  other 
written  evidence  on  file  shall  be  appropriately  referred 
to  in  the  proposed  bill  or  statement,  and  when  it  is 
certified  the  same  or  copies  thereof,  if  the  judge  so 
direct,  shall  be  attached  to  the  bill  or  statement  and 
shall  thereupon  become  a  part  thereof. ' ' 88 

It  is  therefore  the  general  rule  that  depositions  and 
other  written  evidence  on  file  are  not  a  part  of  the 
record;  and  when  necessary  to  the  review  of  a  cause, 
must  be  embodied  in  a  bill  of  exceptions  or  statement 
of  facts." 

When,  therefore,  depositions  and  other  written  evi- 
dence on  file  are  not  embodied  in  the  original  bill  or 
statement,  and  amendments  are  not  proposed  thereto, 

82  State  ex  rel.  Sander  v.  Jones,  20  Wash.  576,  56  Pac.  369. 

83  Rem.  &  Bal.  Code,  §  390.     See  §  11,  supra. 

84  Chapin  v.   Bokee,  4  Wash.  1,  29  Pac.  936;  Likens  v. 
Cain,  4  Wash.  307,  30  Pac.  80;  State  ex  rel.  Van  Name  v. 
Board  of  Directors,  14  Wash.  222,  44  Pac.  270;  Demaris  v. 
Barker,  33  Wash.  200,  74  Pac.  362;  Hoskins  v.  Barker,  33 
Wash.  706,  74  Pac.  1135;  Shorno  v.  Doak,  45  Wash.  613, 
88   Pac.    1113.     See,    in   further  support   of   the    rule,    the 
numerous  cases  relating  to  affidavits  which  have  already  been 
cited  in  this  section ;  Crane  v.  Dexter  Horton  &  Co.,  5  Wash. 
479.  32  Pac.  223. 


59  PREPARATION   OP   BILL   OR   STATEMENT.  §  44 

and  the  bill  or  statement  is  duly  settled  and  certified, 
they  cannot  be  considered,  even  though  embodied  in 
the  transcript;  for  it  will  not  be  presumed  from  the 
mere  fact  that  they  were  filed  in  the  lower  court  and 
embodied  in  the  transcript  on  appeal  that  they  were 
read  and  admitted  in  evidence,  and  are  matters  which 
occurred  in  the  cause;  and  the  certificate  will  be  con- 
clusive. 

Respondent,  if  he  deems  them  material  to  a  proper 
consideration  of  the  cause  on  appeal,  should,  by  a  pro- 
posed amendment,  have  them  embodied  in  the  original 
bill  or  statement;  and  if  he  does  not  do  so,  his  objec- 
tions to  the  bill  or  statement  because  of  the  omission 
will  not  be  sustained.85 

To  this  general  rule,  however,  that  depositions  and 
other  written  evidence  on  file  are  not  a  part  of  the 
record,  and  when  necessary  to  the  review  of  a  cause, 
must  be  embodied  in  a  bill  of  exceptions  or  statement 
of  facts,  there  are  two  exceptions.  One  of  these  is 
statutory;  and  the  other  has  its  existence  by  virtue 
of  judicial  decisions.  And,  first,  with  regard  to  the 
statutory  exception. 

The  statute  provides  that  all  reports  of  referees  or 
commissioners,  with  the  testimony  and  other  evidence 
returned  into  court  therewith,  shall,  upon  being  filed 
in  the  cause,  become  a  part  of  the  record  in  the  cause, 
for  all  the  purposes  thereof  and  of  any  appeal  therein; 
and  that  it  shall  not  be  necessary  or  proper,  for  any 
purpose,  to  embody  the  same  in  any  bill  of  exceptions 
or  statement  of  facts.86 

Pursuant  to  this  provision  it  is,  therefore,  held  that 
all  reports  of  referees  or  commissioners,  with  the  testi- 
mony and  other  evidence  returned  into  court  therewith, 

"  Swift  v.  Swift,  39  Wash.  600,  81  Pac.  1052. 
86  Rem.  &  Bal.  Code,  §  395.     See  §  16,  supra. 


§  44      BILLS   OP  EXCEPTIONS   AND   STATEMENTS   OP   PACTS.          60 

are,  when  filed,  a  part  of  the  record,  and  need  not  be 
embodied  in  a  bill  of  exceptions  or  statement  of  facts." 

The  testimony  and  other  evidence  must,  however, 
be  returned  into  court  with  his  report,  by  the  referee 
or  commissioner.  If  transcribed  and  filed  by  one  of 
the  parties  it  is  not  a  part  of  the  record,  and  in  such  a 
case  must  be  embodied  in  a  bill  of  exceptions  or  state- 
ment of  facts.88 

Secondly,  with  reference  to  the  exception  which 
exists  by  virtue  of  judicial  decisions. 

It  is  well  settled  that  a  motion  is  a  part  of  the  record, 
and  that  an  affidavit  which  is  clearly  identified  as  a 
part  of  the  motion  to  which  it  is  attached  thereby 
becomes  a  part  of  the  record,  and  need  not  be  embodied 
in  a  bill  of  exceptions  or  statement  of  facts.89 

In  an  early  case  the  question  whether  a  motion  is 
a  part  of  the  record  was  raised,  but  its  determination 
was  avoided.80 

In  a  later  case,  however,  it  was  held  that  a  motion 
was  not  a  part  of  the  record,  and  should,  therefore, 
when  deemed  necessary  to  the  proper  consideration 

87  See  Bash  v.  Culver  Gold  Min.  Co.,  7  Wash.  122,  34 
Pac.  462 ;  Healy  v.  Seward,  5  Wash.  319,  31  Pac.  874 ;  Sav- 
ings, Loan  &  Building  Co.  v.  Jones,  9  Wash.  434,  37  Pac. 
666. 

88  State  ex  rel.  Richardson  v.  Superior  Court,  41  Wash. 
439,  83  Pac.  1027. 

89  State  v.  Vance,  29  Wash.  435,  70  Pac.  34;  Richardson 
v.  Richardson,  43  Wash.  634,  86  Pac.  1069 ;  Chaney  v.  Chaney, 
56  Wash.  145,  105  Pac.  229.     See,  also,  the  following  cases 
where  the  rule  was  recognized:  Chevalier  &  Co.  v.  Wilson, 
30  Wash.  227,  70  Pac.  487 ;  Swanson  v.  Pacific  Shipping  Co., 
60  Wash.  87,  110  Pac.  795. 

80  See  Tullis  v.  Shannon,  3  Wash.  716,  29  Pac.  449. 


61  PREPARATION   OP   BILL   OR   STATEMENT.  §  45 

of  the  cause  on  appeal,  be  embodied  in  a  bill  of  ex- 
ceptions or  statement  of  facts." 

§  45.  (d)  The  Method  of  Embodying  Depositions 
and  Other  Written  Evidence  on  File. — Depositions  and 
other  written  evidence  on  file,  except,  of  course,  re- 
ports of  referees  or  commissioners,  with  the  testimony 
and  other  evidence  returned  into  court  therewith  by 
the  referees  or  commissioners  and  filed,  and  affidavits 
which  have  been  made  a  part  of  the  motions  to  which 
they  are  attached,  which,  as  has  just  been  shown,  are 
already  a  part  of  the  record,  are  appropriately  referred 
to  in  the  bill  or  statement  by  a  simple  statement  therein 
that  the  exhibit  or  deposition,  giving  the  mark  of 
identification,  was  offered  and  received  in  evidence; 
and  this  is  all  that  is  necessary  to  make  them  a  part 
of  the  bill  or  statement.92 

Their  attachment  to  the  bill  or  statement,  though 
proper,  is  not  essential.93 

The  statute  relating  to  the  subject  reads  as  follows: 
"Depositions  and  other  written  evidence  on  file  shall 
be  appropriately  referred  to  in  the  proposed  bill  or 
statement,  and  when  it  is  certified  the  same  or  copies 

81  See  State  v.  Howard,  15  Wash.  425,  46  Pac.  650. 

92  Douthitt  v.   MacCulsky,   11   Wash.   601,   40  Pac.   186; 
Thornely  v.  Andrews,  40  Wash.  580,  111  Am.  St.  Rep.  983, 
1  L.  R.  A.,  N.  S.,  1036,  82  Pac.  899 ;  Pennsylvania  Mortgage 
&  Investment  Co.  v.  Gilbert,  18  Wash.  667,  52  Pac.  246; 
Templeman  v.  Evans,  35  Wash.  302,  77  Pac.  381. 

93  Thornely  v.  Andrews,  40  Wash.  580,  111  Am.  St.  Rep. 
983,   1   L.   R.   A.,   N.   S.,   1036,   82   Pac.   899;   Suksdorf  v. 
Humphrey,   36   Wash.   1,   77  Pac.    1071;   Douthitt  v.   Mac- 
Culsky, 11  Wash.  601,  40  Pac.  186;  Pennsylvania  Mortgage 
&  Investment  Co.  v.  Gilbert,   18  Wash.  667,  52  Pac.  246; 
Templeman  v.  Evans,  35  Wash.  302,  77  Pac.  381.     See,  also, 
Jones  v.  Herrick,  33  Wash.  197,  74  Pac.  332. 


§  45      BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OP   FACTS.          62 

thereof,  if  the  judge  so  direct,  shall  be  attached  to  the 
bill  or  statement  and  shall  thereupon  become  a  part 
thereof."94 

At  first  glance  it  would  seem  that  the  rule  is  quite 
out  of  harmony  with  the  statutory  provision;  and  in- 
asmuch as  the  decisions  are  silent  upon  the  subject,  a 
brief  investigation  regarding  the  reason  for  the  rule 
will  probably  not  be  out  of  place. 

Since  the  statute 95  provides  that  the  first  step  in  con- 
nection with  the  settlement  of  the  bill  or  statement 
shall  be  the  filing  thereof  and  the  service  of  a  copy 
thereof  on  the  adverse  party;  and  since  the  statute 
above  quoted  provides  for  an  appropriate  reference  to 
the  exhibits  or  depositions  in  the  bill  or  statement  as 
proposed,  that  is,  as  filed  and  served,  and  for  the  attach- 
ment of  the  depositions  or  exhibits  to  the  bill  or 
statement  when  it  is  certified, — that  is,  not  until  the 
last  step  in  connection  with  the  settlement  of  the  bill 
or  statement  is  taken, — it  is  clear  that  the  statute 
which  provides  for  the  filing  of  the  original  bill  or 
statement  and  the  service  of  a  copy  thereof  on  the 
adverse  party  does  not  contemplate  that  actual  attach- 
ment is  necessary  either  to  the  original  bill  or  state- 
ment which  is  filed,  or  to  the  copy  which  is  served; 
for  if  it  did,  the  copy  whose  service  is  provided  for 
would  not  be  a  copy,  and  the  original  which  is  pro- 
vided for  would  not  be  complete  when  filed.  It  is 
therefore  also  clear  that  in  so  far  as  the  duties  which 
are  imposed  by  the  statute  upon  the  appellant  are  con- 
cerned, the  exhibits  or  depositions  become  a  part  of 
the  bill  or  statement  when  they  are  appropriately  re- 
ferred to  therein. 

94  Rem.  &  Bal.  Code,  §  390.     See  §  11,  supra. 
96  Bern.  &  Bal.  Code,  §  389.     See  §  10,  supra. 


63  PREPARATION   OP   BILL   OR   STATEMENT.  §  45 

The  attachment  of  the  exhibits  or  depositions  is  a 
matter  which  is  placed  by  the  statute  under  the  super- 
vision and  control  of  the  judge;  and  the  statute  is  not, 
therefore,  to  be  construed  as  contemplating  that  an 
omission  or  neglect  on  the  part  of  the  judge  regarding 
a  matter  which  it  is  his  duty  to  supervise  and  control 
will,  in  any  manner,  affect  an  embodiment  which  is 
already  perfect  so  far  as  a  compliance  with  the  stat- 
ute by  an  appellant  can  make  it  perfect. 

The  provision  that  "when  it  is  certified  the  same 
or  copies  thereof,  if  the  judge  so  direct,  shall  be  at- 
tached to  the  bill  or  statement ' '  is,  therefore,  to  be  con- 
strued as  a  mere  direction  that  the  judge  may,  if  he 
wishes,  attach  the  exhibits  or  depositions  to  the  bill  or 
statement,  or  cause  them  to  be  attached  thereto,  at 
the  time  of  the  certification ;  and  that  a  failure  to  do  so 
cannot,  in  any  event,  affect  an  embodiment  of  the  same 
which  is  already  perfect. 

In  consonance  with  this  view  of  the  rule,  it  is  held 
that  an  objection  that  the  exhibits  or  depositions  were 
not  attached  when  the  bill  or  statement  was  served, 
or  that  copies  thereof  were  not  attached  when  the  bill 
or  statement  was  served,  is  not  tenable.98 

The  rule  that  the  depositions  or  exhibits  must  be 
appropriately  referred  to  implies  that  the  depositions 
or  exhibits  themselves  must  be  properly  marked  for 
identification  so  that  an  appropriate  reference  can  be 
made.97 

In  an  early  case  which  was  decided  under  former 
statutes  it  was  held  that  in  equitable  causes  the  origi- 

96  Thoraely  v.  Andrews,  40  Wash.  580,  111  Am.  St.  Rep. 
983,  1  L.  R.  A.,  N.  S.,  1036,  82  Pac.  899;  Douthitt  v.  Mac- 
Culsky,  11  Wash.  601,  40  Pac.  186;  Pennsylvania  Mortgage 
&  Investment  Co.  v.  Gilbert,  18  Wash.  667,  52  Pac.  246. 

•7  Stinson  v.  Sachs,  8  Wash.  391,  36  Pac.  287. 


§  45      BILLS   OP  EXCEPTIONS   AND   STATEMENTS   OP   FACTS.          64 

nal  exhibits  should  be  sent  up  on  appeal,  and  not  copies 
thereof.98 

It  is  unquestionably  the  best  practice  not  only  to 
appropriately  refer  to  the  exhibits  or  depositions  in 
the  bill  or  statement,  but  also  to  request  the  judge  to 
attach  them,  or  cause  them  to  be  attached  to  the  bill 
or  statement  at  the  time  of  the  certification;  for  when 
they  are  not  attached,  they  are  liable  to  be  misplaced, 
and  it  has  been  held  that  when  they  are  not  attached 
to  the  bill  or  statement,  nor  transmitted  to  the  court, 
the  bill  or  statement  will,  of  necessity,  be  disregarded." 

They  may  be  attached  by  counsel  before  the  certifi- 
cation, or  by  the  judge.100 

They  may  also  be  attached  by  the  clerk.101 

In  one  case  where  exhibits  were  not  attached,  and 
were  missing,  the  court  voluntarily  postponed  its  de- 
termination of  a  cause  upon  the  merits,  and  took  the 
pains  to  write  a  separate  opinion  for  the  express  pur- 
pose of  fixing  a  period  within  which  the  record  might 
be  supplied.  But  this  is  a  solitary  instance  of  extreme 
leniency,  a  repetition  of  which  can  hardly  be  expected 
in  view  of  the  voluminous  business  before  the  court; 
and  especially  in  view  of  the  fact  that  such  a  state 
of  things  can  readily  be  avoided  by  the  exercise  of 
ordinary  care  in  securely  attaching  the  exhibits  to 
the  bill  or  statement  at  the  time  of  its  certification.102 

Since  it  is  not  necessary  to  attach  them  to  the  bill 
or  statement,  and  since  their  transmission  to  the  su- 

98  State  ex  rel.  Quade  v.  Allyn,  2  Wash.  470,  27  Pac.  233. 

99  State  ex  rel.  Van  Name  v.  Directors,  14  Wash.  222,  44 
Pac.  270. 

100  Douthitt  v.  MacCulsky,  11  Wash.  601,  40  Pac.  186. 

101  Pennsylvania  Mortgage  &  Investment  Co.  v.  Gilbert, 
18  Wash.  667,  52  Pac.  246. 

102  See  Morse  v.  Ely,  21  Wash.  708,  61  Pac.  1135. 


65  PREPARATION  OP  BILL  OR  STATEMENT.  §  45 

preme  court  with  the  other  papers  in  the  case  is  all 
that  is  necessary,  it  seems  to  be  held  that  their  attach- 
ment to  the  transcript  is  not  improper.103 

But  while  they  may  be  attached  to  the  transcript, 
they  cannot  be  embodied  in  the  transcript.104 

In  the  following  case  it  would  appear  that  they  were 
embodied  in  the  transcript,  and  that  the  court  refused 
to  strike  them  from  the  record  for  the  reasons  that 
they  were  accurately  identified  and  that  the  bill  or 
statement  was  duly  certified.105 

The  reader's  attention  is  also  called  to  the  following 
statement  of  the  court  in  a  later  case:  "The  exhibits 
became  a  part  of  the  record  when  they  were  introduced 
and  received  as  evidence  in  the  case. ' ' 108 

This  statement  is,  of  course,  erroneous ;  for  if  it  were 
true,  it  would  not  be  necessary  to  make  them  a  part 
of  the  bill  or  statement.  Besides,  it  appears  from  the 
case  itself  that  the  exhibits  were  attached  to  the  bill 
or  statement. 

The  case  of  State  v.  Hyde,  supra,  is  either  a  very 
lenient  case,  or  the  exhibits  were  attached  to  the  tran- 
script. 

In  any  event,  an  occasional  lenient  decision,  or  an 
occasional  slip  of  the  pen,  must  not  be  understood  as 

103  Templeman  v.  Evans,  35  Wash.  302,  77  Pac.  381.     See, 
also,  Jones  v.  Herrick,  33  Wash.  197,  74  Pac.  332,  where 
such  practice  seems  to  be  impliedly  sustained. 

104  Swift  v.  Swift,  39  Wash.  600,  81  Pac.  1052;  Shorno  v. 
Doak,  45  Wash.  613,  88  Pac.  1113;  Demaris  v.  Barker,  33 
Wash.  200,  74  Pac.  362;  Hoskins  v.  Barker,  33  Wash.  706, 
74  Pac.  1136.     See,  also,  Likens  v.  Cain,  4  Wash.  307,  30 
Pac.  80;  Chapin  v.  Bokee,  4  Wash.  1,  29  Pac.  936. 

108  State  v.  Hyde,  22  Wash.  551,  61  Pac.  719. 

106  Suksdorf  v.  Humphrey,  36  Wash.  1,  77  Pac.  1071. 


§  46      BILLS   OP  EXCEPTIONS   AND   STATEMENTS   OP   FACTS.          66 

affecting  the  true  rule  as  shown  by  the  decisions  as 
a  whole. 

Depositions  and  other  evidence  on  file  may  also  be 
made  a  part  of  the  bill  or  statement  by  the  embodi- 
ment of  copies  thereof  in  the  bill  or  statement ;  and  an 
embodiment  of  copies  is,  in  itself,  a  direction  that 
copies  may  be  substituted  for  the  originals.107 

§  46.  (e)  What  must  not  be  Embodied  in  the  Bill 
or  Statement. — Since  it  is  the  office  of  a  bill  of  excep- 
tions or  statement  of  facts  to  embody  in  the  record 
all  material  facts,  matters  and  proceedings  which  have 
occurred  in  the  cause,  and  which  are  not  already  a 
part  of  the  record,  it  is  evident  that  the  bill  or  state- 
ment cannot  legitimately  embody  any  part  of  the 
record,  or  any  facts,  matters  and  proceedings  which 
are  not  material  to  a  determination  of  the  question  or 
questions  raised  on  appeal,  even  though  they  occurred 
in  the  cause. 

A  definite  knowledge  of  what  constitutes  the  record 
is,  therefore,  necessary  to  an  intelligent  preparation 
of  the  bill  or  statement. 

The  statutory  provisions  relating  to  this  subject  are 
set  forth  in  full  in  previous  sections  of  this  work.108 

From  these  statutory  provisions,  and  from  decisions 
of  the  court  which  have  been  considered  in  section  44. 
of  this  work,  the  record  (independent,  of  course,  of 
the  bill  or  statement)  may  be  defined  to  be  all  the  files 
of  the  superior  court  in  the  particular  cause,  including 
reports  of  referees  or  commissioners,  with  the  testi- 
mony and  other  evidence  returned  into  court  therewith 
by  the  referees  or  commissioners,  and  filed,  and  affi- 
davits which  have  been  made  a  part  of  the  motions  to 

107  O'Neile  v.  Ternes,  32  Wash.  528,  73  Pac.  692. 

108  See  §§  11,  16,  19,  21,  supra. 


67  PREPARATION   OF   BILL   OR   STATEMENT.  §  46 

which  they  are  attached,  but  excluding  all  other  deposi- 
tions or  written  evidence  on  file. 

These  properly  belong  in  the  transcript  of  the  record 
which  is  prepared  and  certified  by  the  clerk. 

The  following,  therefore,  are  the  principal  things 
which  should  not  be  embodied  in  the  bill  or  statement: 

1.  The  summons. 

2.  The  pleadings,  which  consist  of  the  complaint, 
answer,  demurrers  and  reply. 

Thus,  upon  appeal  from  a  judgment  in  a  cause  tried 
upon  complaint  and  demurrer,  a  bill  of  exceptions  or 
statement  of  facts  is  unnecessary,  as  the  complaint 
and  demurrer  constitute  a  portion  of  the  record  in  the 
cause.10' 

When  a  cause  has  been  determined  on  the  pleadings, 
a  bill  of  exceptions  or  statement  of  facts  is  unneces- 
sary.110 

When  the  error  assigned  is  the  judgment  of  dismis- 
sal of  a  complaint,  which  is  substantially  the  sustain- 
ing of  a  demurrer  thereto,  a  bill  of  exceptions  or 
statement  of  facts  is  unnecessary.111 

Or  where  the  error  assigned  is  the  striking  of  an 
answer.112 

The  rule  was  relaxed  in  an  early  case.118 

109  See  State  ex  rel.  Tremblay  v.  McQuade,  12  Wash.  554, 
41  Pac.  897. 

110  Ewing  v.  Van  Wagenen,  6  Wash.  39,  32  Pac.  1009. 

111  Long  v.  Billings,  7  Wash.  267,  34  Pac.  936. 

112  Tullis  v.  Shannon,  3  Wash.  716,  29  Pac.  449.     That 
it  is  not  necessary  to  incorporate  in  a  bill  of  exceptions  or 
statement  of  facts  matters  which  are  already  a  part  of  the 
record,  such  as  pleadings  and  other  matters  of  record,  see 
Seattle  &  Montana  Ry.  Go.  v.  Johnson,  7  Wash.  97,  34  Pac. 
567. 

118  See  Savings,  Loan  &  Building  Oo.  v.  Jones,  9  Wash. 
434,  37  Pac.  666. 


§  46      BILLS   OF   EXCEPTIONS   AND   STATEMENTS   OF    FACTS.          68 

The  ultimate  facts  of  a  cause  may,  no  doubt,  by  stip- 
ulation of  the  parties,  be  reduced  to  the  form  of  agreed 
facts,  and  when  filed,  become  a  part  of  the  record  in 
the  cause;  for  ultimate  facts  so  set  forth  are  plainly 
nothing  more  nor  less  than  admitted  pleadings  reduced 
to  a  concrete  form,  and  are  therefore  properly  a  part 
of  the  record.11* 

3.  All  reports  of  referees  or  commissioners,  with  the 
testimony  and  other  evidence  returned  into  court  there- 
with.115 

The  testimony  and  other  evidence  must,  however,  be 
returned  into  court  with  his  report,  by  the  referee  or 
commissioner.  If  transcribed  and  filed  by  one  of  the 
parties,  it  is  not  a  part  of  the  record,  and  in  such  a 
case  must  be  embodied  in  a  bill  of  exceptions  or  state- 
ment of  facts.116 

4.  All  findings  of  fact  and  conclusions  of  law  made 
in  writing  by  a  judge,  referee  or  commissioner  and 
signed  by  him.117 

Since  findings  of  fact  and  conclusions  of  law  made 
in  writing  by  a  judge,  referee  or  commissioner,  and 
signed  by  him,  become,  when  filed,  a  part  of  the  rec- 

114  In   this   connection   see   the   following    cases:  Fife   v. 
Olson,  5  Wash.  789,  32  Pac.  766 ;  Asher  v.  Sekofsky,  10  Wash. 
379,  38  Pac.  1133;  Yakima  Water,  Light  &  Power  Co.  v. 
Hathaway,   18  Wash.   377,   51  Pac.  471;   Townsend  Gas  & 
Electric   Light   Co.   v.   Hill,   24  Wash.   469,    64  Pac.   778; 
O'Connor  v.  Enos,  56  Wash.  448,  105  Pac.  1039. 

115  See  Bash  v.  Culver  Gold  Min.  Co.,  7  Wash.  122,  34 
Pac.  462;  Healy  v.  Seward,  5  Wash.  319,  31  Pac.  874;  Sav- 
ings, Loan  &  Building  Co.  v.  Jones,  9  Wash.  434,  37  Pac. 
666. 

116  See  State  ex  rel.  Richardson  v.  Superior  Court,  41  Wash. 
439,  83  Pac.  1027. 

117  State  ex  rel.  Buddress  v.  Bolide,  8  Wash.  362,  36  Pac. 
276. 


69  PREPARATION   OP   BILL   OR   STATEMENT.  §  46 

ord,  it  follows  that  a  bill  of  exceptions  or  statement  of 
facts  is  unnecessary  when  the  findings  are  full  and 
complete,  and  the  question  to  be  determined  is  whether 
or  not  the  conclusions  of  law  and  decree  are  warranted 
by  the  findings  of  fact.118 

The  findings,  however,  must  be  full  and  complete, 
or  this  rule  will  not  apply;  for  where  the  findings  are 
merely  defective,  and  the  contention  is  that  the  decree 
is  not  supported  by  the  findings,  it  will  be  presumed 
in  the  absence  of  the  evidence  that  the  decree  is  sup- 
ported by  the  evidence,  unless  the  contrary  affirma- 
tively appears.119 

But  want  of  full  findings  will  be  excused  when  mod- 
esty demands  it;  and  those  made  will  be  given  a  lib- 
eral construction  to  support  the  decree.120 

5.  All  charges  to  a  jury  made  wholly  in  writing. 

The  statutes  of  1893  provide  that  "all  charges  to  a 
jury  made  wholly  in  writing"  shall  be  a  part  of  the 
record.121 

118  Howard  v.  Shaw,  10  Wash.  151,  38  Pac.  746;  Watson 
v.  Sawyer,  12  Wash.  35,  40  Pac.  413,  41  Pac.  43;  Hill  v. 
Sawyer,  12  Wash,  658,  40  Pac.  414;  State  ex  rel.  Orr  v. 
Fawcett,  17  Wash.  188,  49  Pac.  346;  Brown  v.  Kern,  21 
Wash.  211,  57  Pac.  798;  Fitz  Henry  v.  Hunter,  33  Wash. 
629,  74  Pac.  1003;  Seattle  v.  Smithers,  37  Wash.  119,  79 
Pac.  615 ;  First  National  Bank  of  Seattle  v.  Coles,  40  Wash. 
528,  82  Pac.  892. 

118  Enos  v.  Wilcox,  3  Wash.  44,  28  Pac.  364;  Gould  v. 
Austin,  52  Wash.  457,  100  Pac.  1029;  Clambey  v.  Copland, 
52  Wash.  580,  100  Pac.  1031 ;  Slyfield  v.  WiUard,  43  Wash. 
179,  86  Pac.  392 ;  Nelson  v.  McPhee,  59  Wash.  103,  109  Pac. 
305 ;  Holden  v.  Romano,  61  Wash.  458,  112  Pac.  489. 

120  Bloom  v.  Bloom,  57  Wash.  23,  135  Am.  St.  Eep.  965, 
106  Pac.  197. 

121  Laws  1893,  p.  117,  §  15 ;  Rem.  &  Bal.  Code,  §  395.     See 
§  16,  supra. 


§  46      BILLS   OP  EXCEPTIONS   AND   STATEMENTS   OF   PACTS.          70 

These  words,  when  taken  in  their  usual  and  ordinary 
sense,  are  not  of  doubtful  import,  and  plainly  mean 
all  charges  which  are  first  reduced  to  writing  and 
thereafter  read  to  a  jury  and  filed  in  the  cause;  and  it 
was  accordingly  held,  prior  to  a  subsequent  statutory 
innovation,  that  a  charge  to  a  jury  which  was  partly 
written  and  partly  oral  was  not  a  charge  in  writing, 
notwithstanding  the  fact  that  a  stenographer  was 
present  who  took  down  the  charge  as  given.122 

But  subsequently  the  following  statutory  innovation 
was  made: 

"When  the  evidence  is  concluded,  either  party  may 
request  the  judge  to  charge  the  jury  in  writing,  in 
which  event  no  other  charge  or  instruction  shall  be 
given,  except  the  same  be  contained  in  the  said  written 
charge;  ....  Provided  further,  That  whenever  in 
the  trial  of  any  cause,  a  stenographic  report  of  the 
evidence  and  the  charge  and  instructions  of  the  court 
is  taken,  the  taking  of  such  charge  or  instructions  by 
the  stenographic  reporter,  shall  be  considered  as  a 
charge  or  instruction  in  writing  within  the  meaning  of 
this  section."  128 

The  question  then  arose,  What  constitutes  a  charge 
or  instruction  in  writing  within  the  meaning  of  this 
section?  And  the  court  in  response  thereto  held: 

First,  that  a  charge  or  instruction  which  is  delivered 
orally  and  reduced  to  writing  by  two  stenographers, 
one  of  whom  is  employed  by  plaintiff  and  the  other 
by  defendant,  is  not  a  charge  or  instruction  in  writing 
within  the  meaning  of  the  section.12* 

122  State  v.  Miles,  15  Wash.  534,  46  Pac.  1047. 
128  Laws  1903,  p.  119,  §  1,  subd.   (4). 
124  State  v.  Mayo,  42  Wash.  540,  7  Ann.  Gas.  881,  85  Pac. 
251. 


71  PREPARATION   OP   BILL   OR   STATEMENT.  §  46 

Secondly,  that  a  charge  or  instruction  which  is  de- 
livered orally  and  reduced  to  writing  by  a  stenogra- 
pher who  is  employed  by  both  parties  is  a  charge  or 
instruction  in  writing  within  the  meaning  of  the  sec- 
tion.125 

In  a  later  case,  however,  where  the  charge  or  in- 
struction was  delivered  orally  and  reduced  to  writing 
by  a  stenographer  who  was  employed  by  both  parties, 
the  court  failed  to  note  the  case  of  Collins  v.  Huffman, 
supra,  and  followed  the  early  case  of  State  v.  Miles, 
supra,  and  cited  the  case  of  State  v.  Mayo,  supra,  in 
support  of  its  holding,  and  ruled  that  a  charge  or  in- 
struction which  is  delivered  orally  and  reduced  to  writ- 
ing by  a  stenographer  who  is  employed  by  both  par- 
ties, is  not  a  charge  or  instruction  in  ^itrhg  within 
the  meaning  of  the  section.128 

The  court,  however,  later  ovartjjftkd  the  case  last 
cited,  and  approved  the  Tulo^mMa  was  announced  in 
the  case  of  Collins  v.  Iluftimt/supra™1 

This  statutory  innovajkidn  was,  however,  later  re- 
pealed, and  the  foUowipg  provision  substituted  in  its 
stead : 

"The  court  Sgat&Treduce  the  charge  to  be  given  the 
1  jury  to  writWgi^nd  at  the  conclusion  of  the  evidence 
he  shall  reacynis  written  charge  to  the  jury.  Either 
party  may  request  such  instructions  as  he  deems  mate- 
rial to  the  case,  and  the  court  may  hear  them  upon 
the  propriety  of  the  requested  instructions  before 

125  Collins  v.  Huffman,  48  Wash.  184,  93  Pac.  220. 

126  Mclntosh  v.  Sawmill  Phoenix,  49  Wash.  152,  94  Pae. 
930. 

127  Sturgeon  v.  Tacoma  Eastern  R.  R.  Co.,  51  Wash.  124, 
98  Pac.  87.     See,  also,  Schon  v.  Modern  Woodmen  of  America, 
51  Wash.  482,  99  Pac.  25;  State  v.  Erickson,  54  Wash.  472, 
103  Pac.  796. 


§  46      BILLS  OP  EXCEPTIONS  AND  STATEMENTS  OP   PACTS.          72 

finally  settling  the  charge  that  he  will  give.  If  a  sten- 
ographer shall  be  in  attendance  upon  the  trial  of  the 
cause,  the  court  shall  have  the  right  to  dictate  the 
charge  he  desires  to  give  to  such  stenographer,  and  to 
have  the  stenographer  reduce  the  same  to  writing  for 
him  and  a  copy  for  each  of  the  parties  plaintiff  and 
defendant.  And  the  cost  thereof  shall  be  taxed  as 
other  costs  in  the  action."  128 

The  plain  intent  of  this  present  statutory  provision 
is  that  a  charge  or  instruction  to  a  jury  is  in  writing 
when  it  is  reduced  to  writing  and  read  to  the  jury  and 
filed  in  the  cause,  whether  it  is  reduced  to  writing  by 
the  judge,  or  by  the  stenographer  who  is  present  at 
the  trial  and  who  reduces  it  to  writing  at  the  dicta- 
tion of  the  judge,  or  by  a  party  when  the  proposed 
charge  or  instruction  is  approved  by  the  judge. 

The  written  instructions  become  a  part  of  the  record 
when  filed  in  the  cause,  and  it  is  neither  necessary  nor 
proper  to  embody  them  in  the  bill  or  statement.1284 

Formerly  instructions  in  writing  were  not  a  part  of 
the  record.129 

6.  All  instructions  requested  in  writing  to  be  given 
as  part  of  a  charge. 

These  become  a  part  of  the  record  when  filed  in  the 
cause.  If,  therefore,  they  are  not  filed  in  the  cause 

128  Rem.  &  Bal.  Code,  §  339,  subd.  (4)  ;  Laws  1909,  p.  184, 
§  1,  subd.  (4).     See  §  31,  supra. 

128a  State  v.  Phillips,  59  Wash.  252,  109  Pac.  1047. 

129  Medcalf  v.  Bush,  4  Wash.  386,  30  Pac.  325 ;  Thompson 
v.  Washington  Territory,   1  Wash.   Ter.   548;   Cunningham 
v.  Seattle  Electric  Ry.  &  Power  Co.,  3  Wash.  471,  28  Pac. 
745;  Puget  Sound  Iron  Co.  v.  Worthington,  2  Wash.   Ter. 
472,  7  Pac.  882,  886;  Yelm  Jim  v.  Territory,  1  Wash.  Ter. 
63;  Brown  v.  Forest,  1  Wash.  Ter.  201;  Oregon  R.  R.  & 
Nav.  Co.  v.  Galliher,  2  Wash.  Ter.  70,  3  Pac.,  615. 


73  PREPARATION   OP  BILL   OR   STATEMENT.  §  46 

and  brought  up  as  a  part  of  the  record,  they  cannot  be 
considered.130 

An  instruction  requested  in  writing  and  filed  with 
the  clerk  is  already  a  part  of  the  record,  and  should 
not  be  embodied  in  a  bill  of  exceptions  or  state- 
ment of  facts.181 

7.  All  verdicts,  general  or  special. 

8.  All  rulings  and  decisions  embodied  in  a  written 
judgment,  order  or  journal  entry  in  the  cause,  together 
with  all  exceptions,  if  any,  taken  to  any  thereof.132 

Thus,  the  rulings  of  the  court  upon  demurrers  may 
be  reviewed  upon  the  transcript,  without  incorporating 
in  the  record  any  bill  of  exceptions  or  statement  of 
facts,  or  the  findings  and  conclusions  of  the  lower 
court.133 

Exceptions  to  rulings  and  decisions  embodied  in  a 
written  judgment,  order  or  journal  entry  in  a  cause 
are,  however,  neither  necessary  nor  proper.134 

9.  "When  two  or  more  causes  shall  have  been  con- 
solidated it  shall  not  be  necessary,  for  any  purposes  of 

130  Lemman  v.  Spokane,  38  Wash.  98,  80  Pac.  280 ;  North- 
ern Pacific  Ry.  Co.  v.  Myers-Parr  Mill  Co.,  54  Wash.  447, 
103  Pac.  453. 

131  Tergeson   v.    Robinson   Mfg.    Co.,    48    Wash.    294,    93 
Pac.  428 ;  State  v.  Phillips,  59  Wash.  252,  109  Pac.  1047. 

132  Tullis  v.  Shannon,  3  Wash.  716,  29  Pac.  449. 

133  Chase  National  Bank  of  New  York  v.   Hastings,   20 
Wash.  433,  55  Pac.  574. 

134  Rem.   &  Bal.    Code,  §  382.     See  §  3,   supra;   Taylor   v. 
Spokane  Palls  &  Northern  Ry.  Co.,  32  Wash.  450,  73  Pac. 
499;  Fisher  v.  Puget  Sound  Brick  etc.  Co.,  34  Wash.  578, 
76  Pac.  107.     See,  also,  Long  v.  Billings,  7  Wash.  267,  34 
Pac.  936.     In  the  following  cases  exceptions  were  unneces- 
sarily embodied  in  the  record  entry:  Shotwell  v.  Dodge,  8 
Wash.   337,   36  Pac.   254;  Gottstein  v.   Simmons,   59  Wash. 
178,  109  Pac.  596.     In  the  following  case  an  exception  was 


§  46      BILLS   OF  EXCEPTIONS   AND   STATEMENTS   OP   PACTS.          74 

an  appeal  which  concerns  only  one  or  more,  and  not 
all  of  the  original  causes,  to  embody  in  a  bill  of  excep- 
tions or  statement  of  facts  any  fact,  matter  or  pro- 
ceeding that  relates  solely  to  an  original  cause  with 
which  the  appeal  is  not  concerned.  * '  "5 

But  one  bill  of  exceptions  or  statement  of  facts  is 
necessary  when  two  or  more  causes  are  consolidated 
and  but  one  judgment  rendered.136 

10.  The  statute  also  provides  that  "all  papers  and 
matters  hitherto  deemed  a  part  of  the  record,  shall  be 
deemed  and  are  hereby  declared  to  become,  upon  be- 
ing filed  in  the  cause,  or,  as  the  case  may  be,  embodied 
in  a  journal  entry,  a  part  of  the  record  in  the  cause, 
for  all  the  purposes  thereof  and  of  any  appeal  therein; 
and  it  shall  not  be  necessary  or  proper,  for  any  pur- 
pose, to  embody  the  same  in  any  bill  of  exceptions  or 
statement  of  facts. ' ' 1ST 

This  section  evidently  refers  to  an  earlier  statute 
which  provides  for  the  judgment-roll. 

The  provisions  of  the  statute  relating  to  the  judg- 
ment-roll have  already  been  noted  in  this  section.138 

11.  The  statutes  provide  that  only  the  material  facts, 
matters  and  proceedings  which  have  occurred  in  a 
cause  and  are  not  already  a  part  of  the  record,  should 
be  embodied  in  a  bill  of  exceptions  or  statement  of 
facts. 

unnecessarily  taken  and  embodied  in  what  was  intended  to 
be  a  bill  of  exceptions:  Waite  v.  Stroud,  9  Wash.  333,  37 
Pac.  324. 

135  Rem.  &  Bal.  Code,  §  396.     S«e  §  17,  supra. 

186  Weatherall  v.  Weatherall,  56  Wash.  344,  105  Pac.  822. 

187  Rem.  &  Bal.  Code,  §  395.     See  §  16,  supra. 

IBS  por  the  provisions  themselves,  see  Rem.  &  Bal.  Code, 
§  442.  See  §  19,  supra. 


75  PREPARATION   OP   BILL   OR   STATEMENT.  §  46 

It  is  therefore  the  rule  that  facts,  matters  and  pro- 
ceedings which  are  not  material  to  a  decision  of  the 
question  or  questions  raised  on  appeal,  even  though 
they  occurred  in  the  cause  and  are  not  already  a  part 
of  the  record,  should  not  be  embodied  in  the  bill  or 
statement.139 

The  written  opinion  of  the  judge  is  not  material, 
and  cannot,  therefore,  be  made  a  part  of  the  record.140 

12.  Facts,  matters  and  proceedings  not  occurring  in 
a  cause,  but  which  have  been  injected  into  a  bill  of  ex- 
ceptions or  statement  of  facts  with  the  idea  or  hope 
of  thus  making  them  a  part  of  the  record,  will  not  be 
considered.    Such  matters  cannot  be  embodied  in  the 
bill  or  statement.1*1 

Nor  can  they  by  any  device  be  made  a  part  of  the 
record  either  for  the  purpose  of  supplying  evidence,1*2 
or  for  the  purpose  of  supplying  a  deficient  record  as, 
for  example,  a  lost  or  missing  judgment.143 

13.  Exceptions  to  the  report  of  a  referee  or  commis- 
sioner, or  to  findings  of  fact  or  conclusions  of  law  in  a 
report  or  decision  of  a  referee  or  commissioner,  or  in 
a  decision  of  a  court  or  judge  upon  a  cause  or  part  of 
a  cause,  either  legal  or  equitable,  tried  without  a  jury, 

139  Jones  v.  Jenkins,  3  Wash.  17,  27  Pac.  1022;  Tompson 
v.  Huron  Lumber  Co.,  5  Wash.  527,  32  Pac.  536 ;  Seavey  v. 
Seattle,  17  Wash.  361,  49  Pac.  517 ;  Bruce  v.  Foley,  18  Wash. 
96,  50  Pac.  935 ;  Smith  v.  Glenn,  40  Wash.  262,  82  Pac.  605. 

140  King  County  v.  Hill,  1  Wash.  63,  23  Pac.  926. 

141  North   Star  Trading  Co.  v.   Alaska- Yukon-Pacific  Ex- 
position, 63  Wash.  376,  115  Pac.  855.     See,  also,  Branden- 
stein  v.  Way,  17  Wash.  293,  49  Pac.  511 ;  Buchanan  v.  Laber, 
39  Wash.  410,  81  Pac.  911. 

142  Flood  v.  Libby,  38  Wash.  366,  107  Am.  St.  Rep.  851, 
80  Pac.  533. 

148  Reichenbach  v.  Sage,  8  Wash.  250,  35  Pac.  1081. 


§  46      BILLS   OF  EXCEPTIONS   AND   STATEMENTS   OP   PACTS.          76 

which  are  duly  noted  in  the  margin  or  at  the  foot  of 
the  report  or  decision. 

Since  all  reports  of  referees  or  commissioners,  with 
the  testimony  and  other  evidence  returned  into  court 
therewith  by  the  referees  or  commissioners,  and  filed, 
and  all  findings  of  fact  and  conclusions  of  law  made  in 
writing  by  a  judge,  referee  or  commissioner  and  signed 
by  him,  are  already  a  part  of  the  record ;  and  since  the 
statute  provides  that  the  exceptions  thereto  may  be 
preserved  by  noting  them  in  the  margin  or  at  the  foot 
of  the  report  or  decision,  it  plainly  follows  that  such 
exceptions  when  duly  noted  are  already  a  part  of  the 
record,  and  that  they  should  not  be  embodied  in  a  bill 
of  exceptions  or  statement  of  facts.  The  decisions  as- 
sume this  to  be  the  rule  as  a  matter  of  course.1** 

14.  Written  exceptions  to  the  report  of  a  referee  or 
commissioner  or  to  the  findings  of  fact  or  conclusions 
of  law  in  a  report  or  decision  of  a  referee  or  commis- 
sioner, or  in  a  decision  of  a  court  or  judge  upon  a  cause 
or  part  of  a  cause,  either  legal  or  equitable,  tried  with- 
out a  jury,  when  such  exceptions  are  duly  taken  and 
filed. 

These  also  are  treated  and  considered  as  already  a 
part  of  the  record.1*6 

15.  All  files  which  relate  to  appellate  proceedings.14' 

144  See  Burrows  v.  Kinsley,  27  Wash.  694,  68  Pac.  332; 
Davies  v.  Cheadle,  31  Wash.  168,  71  Pac.  728;  Young  v. 
Borzone,  26  Wash.  4,  66  Pac.  135,  421.     See  Rem.  &  Bal. 
Code,  §§  383,  395.     See  §§  4  and  16,  supra. 

145  See  Fisher  v.  Kirschberg,  17  Wash.  290,  49  Pac.  488; 
Schlotfeldt  v.  Bull,  22  Wash.  362,  60  Pac.  1126;  Ranahan 
v.  Gibbons,  23  Wash.  255,  62  Pac.  773;  Thacker  Wood  & 
Mfg.  Co.  v.  Mallory,  27  Wash.  670,  68  Pac.  199.     See,  also, 
Rem.  &  Bal.  Code,  §§  383,  395.     See  §§4,  16,  supra. 

148  Rem.  &  Bal.  Code,  §  1729.  See  §  21,  supra.  See,  also, 
Johnston  v.  Gerry,  34  Wash.  524,  76  Pac.  258,  77  Pac.  503. 


77  PREPARATION  OP  BILL   OR  STATEMENT.  §  46 

16.  Written  motions  duly  filed  with  the  clerk  of  the 
superior  court. 

In  an  early  case  the  question  whether  a  motion  is  a 
part  of  the  record  was  raised,  but  its  determination 
was  avoided.147 

In  a  later  case,  however,  it  was  held  that  a  motion 
was  not  a  part  of  the  record,  and  should,  therefore, 
when  deemed  necessary  to  the  proper  consideration  of 
the  cause  on  appeal,  be  embodied  in  a  bill  of  exceptions 
or  statement  of  facts.148 

It  is  now  well  settled,  however,  that  a  written  motion 
which  is  duly  filed  with  the  clerk  of  the  superior  court 
is  a  part  of  the  record.149 

17.  Proofs  of  service  of  papers  and  documents  when 
the  same  have  been  duly  filed  with  the  clerk  of  the 
superior  court. 

These  are  not  considered  as  evidence  in  a  cause,  but 
rather  as  proof  of  procedure,  and  are,  therefore,  treated 
as  a  part  of  the  record.150 

14T  See  Tullis  v.  Shannon,  3  Wash.  716,  29  Pac.  449. 

148  State  v.  Howard,  15  Wash.  425,  46  Pac.  650. 

149  State  v.  Vance,  29  Wash.  435,  70  Pac.  34;  Richardson 
v.    Richardson,    43    Wash.    634,    86   Pac.    1069;    Chaney   v. 
Chaney,  56  Wash.  145,  105  Pac.  229 ;  Chevalier  &  Oo.  v.  Wil- 
son, 30  Wash.  227,  70  Pac.  487 ;  Swanson,  v.  Pacific  Co.,  60 
Wash.    87,    110    Pac.    795.     See,    also,    the    following    case 
where  the  court  held  that  a  bill  of  exceptions  or  statement 
of  facts  is  not  necessary  when  the  only  question  to  be  re- 
viewed is  the  power  of  the  lower  court  to  ingraft  an  order 
for  the  sale  of  an  appellant's  property  upon  the  original 
judgment.     The  court  says:  "The  record  here   consists  of 
the  original  judgment,  the  motion  and  order  of  sale,  the 
notice  of  appeal,  the  order  fixing  a  supersedeas  bond,  and 

the  bond The  record  here  presents  this  question": 

Exposition  Amusement  Co.  v.  Raeco  Products  Co.,  55  Wash. 
314,  104  Pac.  509. 

150  See  Whitney  v.  Knowlton,  33  Wash.  319,  74  Pac.  469. 


§  46      BILLS   OF   EXCEPTIONS   AND   STATEMENTS   OP   FACTS  78 

18.  Written  notices  on  file. 

These  are  also  a  part  of  the  record.  Thus,  a  notice 
of  motion  is  treated  as  a  part  of  the  record.151 

19.  Requested  findings  of  fact  and  conclusions  of  law 
which  have  been  duly  filed  and  refused. 

These  are  treated  and  considered  as  already  a  part 
of  the  record.152 

20.  Written  exceptions  to  the  refusal  to  make  re- 
quested findings  and  conclusions  which  have  been  duly 
taken  and  filed. 

These,  as  well  as  exceptions  which  are  noted  in  the 
margin  or  at  the  foot  of  the  refusal,  are  treated  and 
considered  as  already  a  part  of  the  record.153 

21.  Stipulations  in  writing. 

These,  when  filed,  become  a  part  of  the  record.154 
Stipulations  will  not,  however,  be  allowed  to  perform 
the  office  of  a  bill  of  exceptions  or  statement  of  facts. 
The  court  in  considering  this  subject  has  said:  " Ap- 
pellant claims  that  the  testimony  in  this  case,  by  rea- 
son of  the  stipulation  of  attorneys,  was  already  a  part 
of  the  record,  but  we  do  not  think  that  the  testimony 
would  be  a  part  of  the  record.  The  stipulation  that 
such  testimony  might  be  considered  by  the  court  might 
be  a  part  of  the  record,  but  not  the  testimony  submit- 
ted under  the  stipulation;  the  testimony  is  always 

151  Waite  v.  Stroud,  9  Wash.  333,  37  Pac.  324. 

152  Remington  v.  Price,  13  Wash.  76,  42  Pac.  527 ;  Slayton 
v.  Felt,  40  Wash.  1,  82  Pac.  173. 

153  Pederson  v.  Ullrich,  50  Wash.  211,  96  Pac.  1044;  Peter- 
son v.  Johnson,  20  Wash.  497,  55  Pac.  932;  Home  Savings 
&  Loan  Assn.  v.  Burton,  20  Wash.  688,  56  Pac.  940. 

154  Jones  &  Co.  v.  Spokane  Valley  Land  &  Water  Co.,  44 
Wash.  146,  87  Pac.  65;  Spencer  v.  Alki  Point  Transp.  Co., 
53  Wash.  77,  132  Am.  St.  Rep.  1058,  101  Pac.  509;  Dodds 
v.  Gregson,  35  Wash.  402,  77  Pac.  791. 


79  PREPARATION   OF   BILL   OR   STATEMENT.  §  46 

brought  up  under  a  statement  of  facts,  and  only  be- 
comes a  part  of  the  record  when  it  is  made  so  by  set- 
tlement."158 

The  statute  provides  that,  in  one  particular  instance, 
a  stipulation  in  writing  may,  when  duly  filed,  perform 
the  office  of  a  bill  of  exceptions  or  statement  of  facts. 
Thus,  the  statute  provides:  "If  such  judge  shall  die 
or  remove  from  the. state  while  in  office  or  afterward, 
within  the  time  within  which  a  bill  of  exceptions  or 
statement  of  facts,  in  a  cause  that  was  pending  or  tried 
before  him,  might  be  settled  and  certified  under  the 
provisions  of  this  chapter,  and  before  having  certified 
such  bill  or  statement,  such  bill  or  statement  may  be 
settled  by  stipulation  of  the  parties  with  the  same 
effect  as  if  duly  settled  and  certified  by  such  judge 
while  still  in  office."  15S 

In  so  far  as  this  section  confers  upon  the  parties 
under  such  circumstances  the  right  to  settle  the  bill  or 
statement,  it  is,  no  doubt,  unobjectionable,  for  the  set- 
tlement of  the  bill  or  statement  is  a  ministerial  act ;  but 
in  so  far  as  it  attempts  to  delegate  to  the  parties  the 
power  of  certifying  the  bill  or  statement,  it  is  clearly 
unconstitutional,  for  the  certification  of  the  bill  or 
statement  is  a  judicial  function.161 

Oral  stipulations  will  not  be  considered  by  the  su- 
preme court,  unless,  of  course,  like  other  matters  which 
are  not  already  a  part  of  the  record,  they  have  been 

155  Howard  v.  Ross,  3  Wash.  292,  28  Pac.  526;  Madigaii 
v.   West   Coast  Fire  &  Marine  Ins.   Co.,   3  Wash.   454,   28 
Pac.   1027.     See,   also,   State  v.  Maines,  26  Wash.   160,  66 
Pac.  431. 

156  Rem.  &  Bal.  Code,  §  392.     See  §  13,  supra. 
167  See  §§89,  109. 


§  46      BILLS    OF  EXCEPTIONS   AND   STATEMENTS   OP   PACTS.          80 

embodied  in  a  bill  of  exceptions  or  statement  of 
facts.158 

The  court  will  not  allow  its  time  to  be  taken  up  with 
controversies  over  oral  agreements ;  and  will  not,  there- 
fore, consider  affidavits  relating  to  them.  If  the  stip- 
ulation is  not  recorded  in  a  bill  of  exceptions  or  state- 
ment of  facts,  it  should  be  reduced  to  writing  and 
signed  by  the  parties  and  duly  filed  in  the  cause.159 

22.  Transcripts  which  are  required  to  be  certified  to 
a  superior  court  on  the  removal  of  a  cause  thereto  from 
an  inferior  tribunal  are  treated  and  considered  as  al- 
ready a  part  of  the  record. 

These  transcripts  are,  no  doubt,  already  a  part  of 
the  record  in  so  far  as  their  contents  are  composed  of 
matters  which  are  by  the  express  provisions  of  the 
statutes  already  a  part  of  the  record. 

Thus,  it  has  been  held  that  under  Laws  of  1895,  page 
562,  section  82,  providing  that  where  an  appeal  is  taken 
from  the  Board  of  State  Land  Commissioners  to  the 
superior  court,  the  board  /'shall  prepare  and  certify 
under  the  hand  of  its  secretary  and  the  seal  of  such 
board,  a  true  copy  of  all  the  pleadings  and  papers  and 
record  entries  connected  with  said  contest,  except  the 
evidence  used  in  said  contest  before  said  board,  to  the 
clerk  of  the  superior  court  of  the  county  to  which  said 
appeal  has  been  taken,"  such  record,  as  well  as  affi- 
davits filed  with  the  board,  may  properly,  on  appeal 
from  the  decision  of  the  superior  court,  be  sent  to  the 
supreme  court  as  the  transcript  in  the  cause  certified 
by  the  clerk  of  the  superior  court;  and  that  it  is  not 

168  See  Livesley  v.  Pier,  9  Wash.  658,  38  Pac.  156 ;  State 
ex  rel.  Smith  v.  Parker,  9  Wash.  653,  38  Pac.  156 ;  Costello 
v.  Drainage  District  No.  1,  King  County,  44  Wash.  344,  87 
Pac.  513. 

159  See  Humes  v.  Hillman,  39  Wash.  107,  80  Pac.  1104. 


81  PREPARATION   OF   BILL  OR   STATEMENT.  §  46 

necessary  to  embody  it  in  a  bill  of  exceptions  or  state- 
ment of  facts.160 

The  above  decision  is  no  doubt  correct  in  so  far  as  it 
treats  as  a  part  of  the  record  the  pleadings  and  record 
entries  and  such  other  papers  as  are,  by  the  express 
provisions  of  the  statutes,  already  a  part  of  the  record; 
but  in  so  far  as  it  treats  the  affidavits  as  parts  of  the 
record,  it  is  clearly  in  error.  These  affidavits  were 
evidently  used  as  evidence  in  the  trial  of  the  cause  on 
its  merits;  and  the  statute  expressly  excepts  from  the 
transcript  "the  evidence  used  in  said  contest  before 
said  board.11 

The  statute  also  expressly  provides  that  "the  hear- 
ing and  trial  of  said  appeal  in  said  court  shall  take 
place  de  novo  before  the  court  without  a  jury,  upon 
the  pleadings  so  certified." 

The  general  rule  that  affidavits  are  not  already  a 
part  of  the  record,  and  that  they  must,  when  material 
to  a  review  of  the  question  or  questions  raised  on  ap- 
peal, be  embodied  in  a  bill  of  exceptions  or  statement 
of  facts,  is,  therefore,  not  affected  by  this  statute. 

The  court  in  its  desire  to  fully  pass  upon  the  merits 
of  the  cause  undertakes  to  distinguish  the  case  from 
Clay  v.  Selah  Valley  Irr.  Co.,  14  Wash.  543,  45  Pac. 
141,  but  it  is  very  clear  that  the  distinction  does  not 
exist. 

23.  Finally,  all  other  files  of  the  superior  court  in 
the  particular  cause  which  fall  within  the  record  as 
defined  at  the  beginning  of  this  section. 

The  notice  of  appeal  and  proof  of  service  are  parts 
of  the  record,  and  are,  therefore,  properly  embodied  in 
the  transcript.161 

160  Oliver  v.  Dupee,  16  Wash.  634,  48  Pac.  351. 
181  Ward  v.  Springfield  Fire  &  Marine  Ins.  Co.,  12  Wash. 
631  42  Pac.  119. 


§  47      BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OF   PACTS.          82 

An  oral  notice  of  appeal  duly  noted  in  the  journal 
by  the  clerk  should  not  be  embodied  in  the  bill  or  state- 
ment.162 

§  47.  (f )  The  Costs  of  the  Preparation  of  the  Bill 
or  Statement. — The  costs  of  the  preparation  of  the  bill 
or  statement  are  regulated  in  part  by  statute,  and  in 
part  by  judicial  determination;  and  are  allowable  as 
follows: 

1.  In  civil  actions  and  proceedings,  by  virtue  of  the 
statute,  to  the  prevailing  party  who  is  without  fault. 

2.  In  criminal  actions,  by  virtue  of  a  judicial  deter- 
mination, to  the  defendant  when  he  is  successful  on 
appeal. 

The  following  is  the  statutory  provision  which  re- 
lates to  the  present  subject: 

"  Costs  shall  be  allowed  in  the  supreme  court,  irre- 
spective of  any  costs  taxed  in  the  case  in  the  court 
below,  to  the  prevailing  party  in  the  supreme  court, 
on  any  appeal  in  any  civil  action  or  proceeding  as  fol- 
lows: ....  any  sum  actually  paid  or  incurred  by  the 
prevailing  party  as  stenographer's  fees,  not  exceeding 
ten  cents  a  folio,  for  making  a  transcript  of  the  evi- 
dence or  any  part  thereof  included  in  the  bill  of  excep- 
tions or  statement  of  facts;  but  when  the  judgment  of 
the  court  below  shall  be  affirmed  in  part  and  reversed 
in  part,  or  affirmed  as  to  some  of  the  parties  and  re- 
versed as  to  others,  or  modified,  the  costs  shall  be  in 
the  discretion  of  the  court,  and  when  the  judgment  is 
reversed  and  a  new  trial  ordered,  the  court  may  in  its 
discretion  direct  that  costs  of  the  prevailing  party 
shall  abide  the  result  of  the  action. ' ' 16S 

162  Elma  v.  Carney,  4  Wash.  418,  30  Pac.  732. 

163  Bern.  &  Bal.  Code,  §  1744.     See  §  28,  supra. 


83  PREPARATION   OF   BILL   OR   STATEMENT.  §  47 

It  thus  appears  that,  by  virtue  of  the  statute,  costs 
for  the  preparation  of  the  bill  or  statement  in  civil  ac- 
tions or  proceedings  are  allowed  to  the  prevailing 
party;  and  that  to  this  general  rule  there  is  one  excep- 
tion, namely,  that  when  the  judgment  is  reversed  and 
a  new  trial  ordered,  the  court  may  in  its  discretion 
direct  that  costs  of  the  prevailing  party  shall  abide 
the  result  of  the  action. 

The  prevailing  party  must,  however,  be  without 
fault;  for  the  word  " prevailing"  implies  a  blameless 
as  well  as  a  successful  party. 

Thus,  it  has  been  held  that  upon  an  order  of  affirm- 
ance based  upon  a  correction  of  the  certificate  to  a  bill 
or  statement,  no  costs  will  be  allowed  to  respondent 
where  amendments  were  not  proposed,  and  he  waited 
several  months  before  moving  for  a  correction  of  the 
certificate.184 

Costs  are  not,  of  course,  allowable  to  a  stranger  to  an 
action  or  proceeding.  Thus,  it  has  been  held  that  the 
court  has  not  the  power  to  charge  a  county  with  the 
expense  of  a  stenographer's  notes  of  the  testimony 
upon  the  trial  of  a  civil  action  between  individuals, 
although  the  case  may  involve  many  parties  and  con- 
flicting rights.166 

The  statute  expressly  confines  the  allowance  of  costs 
for  the  preparation  of  the  bill  or  statement  to  civil 
actions  or  proceedings;  but  it  is  held  that  the  costs  of 
the  preparation  of  the  bill  or  statement  in  a  criminal 
case,  where  the  appellant  is  successful,  are  taxable 
against  the  state.  The  reason  which  is  assigned  for 
the  rule  is  that  while  the  statutory  right  is  doubtful, 

194  In  re  Holburte's  Estate,  38  Wash.  199,  80  Pac.  294. 
165  State  ex  rel.  Rochford  v.  Superior  Court,  4  Wash.  30, 
29  Pac.  764. 


§  47      BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OF   FACTS.          84 

the  uniform  and  long-continued  practice  of  allowing 
them  has  been  acquiesced  in  by  the  legislature.166 

Whether  the  state  can  be  compelled  to  furnish  a  bill 
of  exceptions  or  statement  of  facts  on  appeal,  in  any 
case,  or  under  any  circumstances,  has  not  as  yet  been 
judicially  determined  under  the  present  statutes. 
Since  the  enactment  of  the  present  statutes  this  ques- 
tion has  been  presented  to  the  court  in  one  case,  but 
the  point  was  not  decided.167 

In  an  early  case  which  was  decided  under  former 
statutes  it  was  held  that  county  commissioners  cannot 
be  compelled,  for  the  benefit  of  the  accused  in  a  crim- 
inal prosecution,  to  advance  money  for  a  copy  of  a 
stenographer's  report  to  be  used  on  appeal.168 

But  this  rule  was  immediately  relaxed  in  favor  of  an 
accused  in  a  capital  case.169 

The  statute  provides  for  the  preparation,  certifying, 
filing  and  forwarding  by  the  clerk  of  a  transcript  of 
the  record  in  criminal  appeals  prosecuted  in  forma 
pauperis,  at  the  expense  of  the  county;  but  does  not 
provide  for  the  preparation  of  a  bill  of  exceptions  or 
statement  of  facts  at  the  expense  of  the  county  or  state 
in  any  case.170 

In  no  case,  however,  can  a  peremptory  judgment 
direct  that  the  costs  of  an  appeal  to  be  prosecuted 
by  an  accused  be  entered  against  a  county  without  an 
appearance  by  or  notice  given  to  the  county.171 

166  See  State  v.  Rutledge,  40  Wash.  9,  82  Pac.  126. 

167  See  State  v.  White,  40  Wash.  428,  82  Pac.  743. 
"•  Stowe  v.  State,  2  Wash.  124,  25  Pac.  1085. 

169  See  State  ex  rel.  Coella  v.  Fenimore,  2  Wash.  370,  26 
Pac.  807. 

170  See  Bern.  &  Bal.  Code,  §  1729.     See  §  21,  supra. 

171  See   State  ex   rel.   Langhorne  v.   Superior   Court,   32 
Wash.  80,  72  Pac.  1027. 


85  PREPARATION   OP   BILL  OR   STATEMENT.  §  47 

It  is  apparent  from  the  foregoing  statute  and  deci- 
sions that  the  state  has  not  the  right  to  recover  from 
a  defendant  in  a  criminal  action  either  the  whole  or 
any  part  of  the  costs  of  an  appeal. 

In  taxing  the  costs  for  the  preparation  of  the  bill  or 
statement  on  appeal,  not  more  than  ten  cents  a  folio 
can  be  allowed  as  disbursements  for  stenographer's 
fees  in  making  a  transcript  of  the  evidence.172 

In  the  above  case  the  court  says:  "The  statute  has 
two  limitations :  if  the  amount  paid  or  incurred  as  sten- 
ographer's  fees  is  less  than  ten  cents  per  folio,  only 
the  amount  so  paid  or  incurred  can  be  recovered  as 
costs;  but  if  the  amount  paid  or  incurred  equals  or 
exceeds  ten  cents  per  folio,  the  amount  to  be  recovered 
is  limited  to  ten  cents  per  folio. 

"It  may  be  true,  as  the  appellant  contends,  that  this 
sum  will  not  reimburse  him  for  the  amount  of  his 
actual  outlay,  but  that  is  not  a  matter  with  which  the 
court  can  concern  itself.  The  regulation  of  court  costs 
is  for  the  legislature,  and  that  body  must  be  appealed 
to  if  the  costs  allowed  by  it  are  either  burdensome  or 
insufficient;  the  courts  can  do  no  more  than  follow  its 
mandate,  so  long  as  it  acts  within  its  constitutional 
powers."  178 

The  cost  bill  should  show  the  number  of  folios  by 
actual  count;  for  where  no  actual  count  of  the  folios  is 
made,  the  clerk 's  estimate,  made  by  counting  a  number 
of  pages,  and  taking  an  average  of  these  as  an  aver- 
age of  the  whole,  will  be  preferred  to  a  party's  esti- 
mate made  by  claiming  a  specified  number  of  folios 
per  page  as  the  average  because  he  had  found  that 
such  was  the  general  average  of  similar  work.174 

172  Nelson  v.  McLellan,  34  Wash.  181,  75  Pac.  635. 
178  Nelson  v.  McLellan,  34  Wash.  181,  75  Pac.  635. 
"*  Nelson  v.  McLellan,  34  Wash.  181,  75  Pac.  635. 


§  47      BILLS   OP  EXCEPTIONS   AND   STATEMENTS   OF    FACTS.          86 

Further  definite  rules  respecting  the  costs  which  will 
be  allowed  for  the  preparation  of  the  bill  or  statement 
cannot  be  given;  for  the  adjustment  of  the  costs  on 
appeal  is,  in  other  respects,  by  express  statutory  pro- 
vision, a  matter  which  is  wholly  within  the  discretion 
of  the  supreme  court.  The  costs  in  other  respects  will, 
therefore,  be  adjusted  in  each  particular  case  in  ac- 
cordance with  the  court's  ideas  of  what  is  just  and 
fair. 


87  PROPOSAL  OP  BILL  OB  STATEMENT. 


CHAPTER  V. 
THE  PROPOSAL  OF  THE  BILL  OR  STATEMENT. 

§  50.     Divisions  of  the  Subject. 

§  51.     The  Necessity  of  Filing  and  Serving  the  Proposed 

Bill  or  Statement. 

§  52.     The  Precedence  Which  must  be  Observed  and  Fol- 
lowed in  the  Filing  and   Service  of  the  Bill  or 

Statement. 

§  53.     The  Proof  of  the  Filing. 
§  54.     The  Kinds  of  Service  Which  are  Provided  for  by 

Statute. 

§  55.     The  Meaning  of  the  Phrase  "Adverse  Party." 
§  56.     The  Meaning  of  the  Clause  "Any  Other  Party  Who 

has  Appeared  in  the  Cause." 
§  57.    The  Various  Methods  of  Serving  the  Proposed  Bill 

or  Statement. 
§  58.    Upon  Whom  It  is  Necessary  to  Serve  the  Proposed 

Bill  or  Statement. 

§  59.     Proof  of  Service  of  the  Proposed  Bill  or  Statement. 
§  60.     When  the  Proposed  Bill  or  Statement  must  be  Filed 

and  Served  in  the  Absence  of  Any  Extension  of 

Time. 
§  61.     The  Methods  of  Extending  the  Time  for  Filing  and 

Serving  the  Proposed  Bill  or  Statement. 
§  62.     The  Time  Within  Which  the  Proposed  Bill  or  State- 
ment must  be  Filed  and  Served  When  an  Extension 

has  Been  Granted. 
§  63.     The  Place  Where  the  Application  for  an  Extension  of 

Time  may  be  Heard. 
§  64.     The  Judge  Who  may  Make  the  Order  Extending  the 

Time,  and  to  Whom,  Therefore,  the  Application  may 

be  Made. 
§  65.     The  Place  Where  the  Order  Extending  the  Time  may 

be  Made, 


§  50      BILLS  OF  EXCEPTIONS   AND   STATEMENTS   OP   FACTS.          88 

§  66.  When  the  Time  Within  Which  the  Proposed  Bill  or 
Statement  must  be  Filed  and  Served  Begins  to  Run. 

§  67.     How  the  Beginning  of  Such  Time  may  be  Postponed. 

§  68.  The  Method  of  Computing  the  Time  Within  Which 
the  Proposed  Bill  or  Statement  must  be  Filed  and 
Served. 

§  50.  Divisions  of  the  Subject.— By  the  proposal  of 
the  bill  or  statement  is  meant  its  submission  as  origi- 
nally prepared,  together  with  the  amendments,  if  any, 
for  settlement  and  certification. 

The  subject  will  therefore  be  considered  in  a  twofold 
view:  1.  With  reference  to  the  submission  of  the  bill 
or  statement  as  originally  prepared,  which  will  be  the 
subject  of  the  present  chapter;  2.  With  reference  to 
the  submission  of  the  amendments,  which  will  be  the 
subject  of  the  following  chapter.  And  first,  with  ref- 
erence to  the  proposal  of  the  bill  or  statement  as  orig- 
inally prepared;  and  this  must  be  regular.  The  sub- 
ject will  be  considered  as  follows: 

(a)  With  reference  to  the  necessity  of  filing  and 
serving  the  proposed  bill  or  statement. 

(b)  With  reference  to  the  precedence  which  must  be 
observed  and  followed. 

(c)  With  reference  to  the  proof  of  filing. 

(d)  With  reference  to  the  kinds  of  service  provided 
for  by  the  statute. 

(e)  The  meaning  of  the  phrase  " adverse  party." 

(f)  The  meaning  of  the  clause  "any  other  party  who 
has  appeared  in  the  cause." 

(g)  With  reference  to  the  various  methods  of  serv- 
ing the  proposed  bill  or  statement. 

(h)  Upon  whom  it  is  necessary  to  serve  the  pro- 
posed bill  or  statement. 

(i)  With  reference  to  the  proof  of  the  service. 


89  PROPOSAL   OF  BILL   OB  STATEMENT.  §  51 

(j)  "With  reference  to  the  time  when  the  proposed 
bill  or  statement  must  be  filed  and  served  in  the  ab- 
sence of  any  extension  of  time. 

(k)  With  reference  to  the  methods  of  extending  the 
time. 

(1)  With  reference  to  the  time  when  the  proposed 
bill  or  statement  must  be  filed  and  served  when  an 
extension  has  been  granted. 

(m)  With  reference  to  the  place  where  the  applica- 
tion for  an  extension  of  time  may  be  heard. 

(n)  With  reference  to  the  judge  who  may  make  the 
order  extending  the  time,  and  to  whom,  therefore,  the 
application  may  be  made. 

(o)  With  reference  to  the  place  where  the  order  ex- 
tending the  time  may  be  made. 

(p)  When  the  time  within  which  the  proposed  bill 
or  statement  must  be  filed  and  served  begins  to  run. 

(q)  How  the  beginning  of  such  time  may  be  post- 
poned. 

(r)  With  reference  to  the  method  of  computing  the 
time  within  which  the  proposed  bill  or  statement  must 
be  filed  and  served. 

And  first,  with  reference  to 

§  51.  (a)  The  Necessity  of  Filing  and  Serving  the 
Proposed  Bill  or  Statement. — The  provision  of  the 
statute  which  relates  to  the  necessity  of  filing  and  serv- 
ing the  proposed  bill  or  statement  reads  as  follows: 

"A  party  desiring  to  have  a  bill  of  exceptions  or 
statement  of  facts  certified  must  prepare  the  same  as 
proposed  by  him,  file  it  in  the  cause  and  serve  a  copy 
thereof  on  the  adverse  party,  and  shall  also  serve 
written  notice  of  the  filing  thereof  on  any  other  party 
who  has  appeared  in  the  cause. ' ' x 

1  Rem.  &  Bal.  Code,  §  389.     See  §  10,  supra. 


§§  52,  55      BILLS  OF  EXCEPTIONS  AND  STATEMENTS  OP  FACTS.      90 

This  provision  of  the  statute  requiring  the  filing  and 
service  is  mandatory ;  and  if  the  so-called  bill  or  state- 
ment is  neither  filed  nor  served,  but  merely  forwarded 
to  the  supreme  court  with  the  other  papers  in  the  case, 
it  will,  on  motion,  be  stricken  from  the  cause.2 

§  52.  (b)  The  Precedence  Which  must  be  Ob- 
served and  Followed  in  the  Piling  and  Service  of  the 
Bill  or  Statement. — The  bill  or  statement  must  be  filed 
before  it  is  served.  If  the  service  precedes  the  filing, 
the  bill  or  statement  will,  on  motion,  be  stricken  from 
the  cause  or  disregarded.3 

§  53.  (c)  The  Proof  of  the  Filing.— There  are  no 
statutory  regulations  or  rules  of  the  supreme  court 
upon  this  subject;  but  it  is  a  rule,  established  by  a 
uniform  and  long-continued  practice,  that  the  filing 
is  proved  by  the  filing  marks  of  the  clerk  of  the  su- 
perior court,  and  that  the  supreme  court  will  take 
judicial  notice  of  such  filing  marks.4 

Where  there  is  an  error  in  the  date  of  the  filing  as 
shown  by  the  filing  marks,  the  true  date  of  tHe  filing 
may  be  shown  by  the  affidavit  of  the  clerk  of  the  su- 

»  Case  v.  Ham,  9  Wash.  54,  36  Pac.  1050. 

«  Erickson  v.  Erickson,  11  Wash.  76,  39  Pac.  241;  Boyle 
v.  Great  Northern  By.  Co.,  13  Wash.  383,  43  Pac.  344; 
Barkley  v.  Barton,  15  Wash.  33,  45  Pac.  654;  State  v.  Yan- 
dell,  34  Wash.  409,  75  Pac.  988;  State  ex  rel.  Palmer 
Mountain  Tunnel  &  Power  Co.  v.  Superior  Court,  63  Wash. 
442,  115  Pac.  845. 

4  Standard  Furniture  Co.  v.  Anderson,  38  Wash.  582,  80 
Pac.  813 ;  Johnston  v.  Gerry,  34  Wash.  524,  76  Pac.  258,  77 
Pac.  503;  Turner  v.  Bailey,  12  Wash.  634,  42  Pac.  115; 
Boyle  v.  Great  Northern  Ry.  Co.,  13  Wash.  383,  43  Pac.  344. 
See,  also,  McBroom  &  Wilson  Co.  v.  Gandy,  18  Wash.  79, 
50  Pac.  572. 


91  PROPOSAL   OF   BILL   OR   STATEMENT.  §§  54,  55 

perior  court  attached  to  the  bill  or  statement  and  for- 
warded therewith  to  the  supreme  court.5 

This  rule  is  applicable  to  the  proof  of  filing  of  all 
other  papers  with  which  this  subject  is  concerned ;  and 
will  therefore  render  anv  further  consideration  of  such 
proof  unnecessary. 

§  54.  (d)  The  Kinds  of  Service  Which  are  Pro- 
vided for  by  the  Statute. — The  statute  in  providing 
that  "a  party  desiring  to  have  a  bill  of  exceptions  or 
statement  of  facts  certified  must  prepare  the  same  as 
proposed  by  him,  file  it  in  the  cause  and  serve  a  copy 
thereof  on  the  adverse  party,  and  shall  also  serve 
written  notice  of  the  filing  thereof  on  any  other  party 
who  has  appeared  in  the  cause,"  plainly  contemplates 
two  kinds  of  service,  namely: 

1.  Actual  service  by  the   service  of  a  copy  of   the 
original  bill  or  statement  on  the  adverse  party;  and 

2.  Constructive  service  by  the  filing  of  the  original 
bill  or  statement  with  the  clerk  of  the  superior  court, 
and  by  the  service  of  written  notice  of  the  filing  thereof 
on  any  other  party  who  has  appeared  in  the  cause. 

§  55.  (e)  The  Meaning  of  the  Phrase  "Adverse 
Party." — The  phrase  "adverse  party"  has  a  settled 
and  well-defined  meaning,  and  is  held  to  mean  every 
party  whose  interest  in  the  subject  matter  of  the  ap- 
peal is  adverse  to  or  will  be  affected  by  the  reversal 
or  modification  of  the  judgment  or  order  from  which 
the  appeal  has  been  taken,  irrespective  of  the  question 
whether  he  appears  upon  the  face  of  the  record  in  the 
attitude  of  plaintiff  or  defendant  or  intervenor.' 

6  See  Bank  of  Shelton  v.  Willey,  7  Wash.  535,  35  Pac.  411. 
6  Seattle  Trust  Co.  v.  Pitner,  17  Wash.  365,  49  Pac.  505. 
See,  also,  Bruhn  v.  Steffins,  24  Wash.  Dec.  78,  119  Pac.  29. 


§  56      BILLS  OP  EXCEPTIONS   AND   STATEMENTS  OP   FACTS.          92 

§  56.  (f)  The  Meaning  of  the  Clause  "Any  Other 
Party  Who  has  Appeared  in  the  Cause." — This  clause 
may  be  defined  to  be  any  party  who  has  appeared  in  the 
cause,  has  an  appealable  interest  therein,  and  who  may 
join  in  an  appeal  by  reason  of  the  fact  that  he  is 
similarly  affected  by  the  ruling  of  the  lower  court.1 

If  literally  taken,  it  might  include  a  party  who  has 
appeared  and  been  dismissed;  but  such  a  construction 
would  require  the  service  of  the  notice  of  the  filing  of 
the  bill  or  statement  to  be  made  upon  a  stranger  to 
the  cause,  and  this  the  statute  does  not  contemplate  in 
any  case.8 

If  literally  taken,  it  might,  upon  an  appeal  by  a 
plaintiff,  include  a  garnishee  who  has  appeared  in  re- 
sponse to  the  writ  issued  at  the  instance  of  the  plaintiff, 
and  admitted  a  stated  indebtedness,  and  who  has  there- 
after been  discharged  from  liability  upon  judgment 
being  rendered  in  favor  of  the  defendant;  for  if  a 
garnishee  can  be  said  to  be  a  party  to  the  principal 
action  between  the  plaintiff  and  defendant,  he  is  not 
in  such  a  case  an  adverse  party  for  the  reason  that 
he  is  not,  although  it  be  assumed  that  he  has  appeared 
in  the  case,  a  party  who  will  be  affected  by  the  appeal ; 

T  Sipes  v.  Puget  Sound  Electric  Ry.  Co.,  50  Wash.  585, 
97  Pac.  723;  Wilson  v.  Puget  Sound  Electric  Ry.  Co.,  50 
Wash.  596,  97  Pac.  727;  Harris  v.  Puget  Sound  Electric 
Ry.  Co.,  50  Wash.  704,  97  Pac.  728 ;  Iverson  v.  Bradrick,  54 
Wash.  633,  104  Pac.  180;  Exposition  Amusement  Co.  v. 
Raeco  Products  Co.,  55  Wash.  314,  104  Pac.  509;  Beckman 
v.  Brommer,  57  Wash.  436,  107  Pac.  190;  Robertson  Mort- 
gage Co.  v.  Thomas,  60  Wash.  514,  111  Pac.  795.  See,  also, 
Robertson  Mortgage  Co.  v.  Thomas,  63  Wash.  316,  115  Pac. 
312. 

8  See  Woelflen  v.  Lewiston-Clarkston  Co.,  49  Wash.  405, 
95  Pac.  493 ;  Sheehan  v.  Bailey  Building  Co.,  42  Wash.  535, 
85  Pac.  44. 


93  PROPOSAL  OP  BILL  OE  STATEMENT.  §  56 

nor  is  he  "any  other  party  who  has  appeared  in  the 
cause"  within  the  meaning  of  the  statute,  for  he  is  not 
one  who  has  an  appealable  interest  and  who  may  join 
in  the  appeal.* 

But  it  is  not  entirely  clear  that  a  garnishee  is  a  party 
to  the  principal  action  between  the  plaintiff  and  de- 
fendant. The  court  in  a  comparatively  late  case  seems 
to  take  the  view  that  he  is  not.  Thus,  the  court  says: 
"The  respondent  moves  to  dismiss  the  appeal  for  the 
reason  that  certain  persons  who  were  summoned  as 
garnishees  in  the  court  below,  and  who  filed  answers 
to  the  garnishee  process  in  that  court,  were  not  served 
with  the  notice  of  appeal.  But  these  persons  were  in 
no  sense  parties  to  the  action,  and  no  right  of  theirs 
can  be  affected,  however  the  case  may  be  decided  on 
this  appeal.  They  have  therefore  no  legal  right  to 
appear  in  this  court,  either  to  controvert  or  sustain 
the  judgment  appealed  from,  and  consequently  there 
was  no  necessity  for  serving  them  with  the  appeal 
notice."10 

From  this  case  it  is  quite  clear  that  whether  a  gar- 
nishee is  a  party  to  the  principal  action  or  not,  a  service 
of  anything  upon  him  is  unnecessary  when  he  has  no 
appealable  interest  nor  an  interest  which  will  be  af- 
fected by  an  appeal. 

If  it  is  not  necessary  to  serve  him  with  the  notice 
of  appeal,  on  appeal  by  the  plaintiff  from  a  judgment 
in  favor  of  the  defendant,  it  certainly  will  not  be  neces- 
sary to  serve  him  with  anything  else  connected  with 
the  appeal. 

•  See  Seattle  Trust  Co.  v.  Pitner,  17  Wash.  365,  49  Pac. 
505. 

10  Sudden  &  Christenson  v.  Morse,  48  Wash.  101,  92  Pac. 
901. 


§  56      BILLS  OF   EXCEPTIONS    AND   STATEMENTS   OF    FACTS.          94 

If  literally  taken,  it  might  include  a  coparty  who 
has  not  been  dismissed;  for  a  coparty  who  has  appeared 
in  the  cause  may  be  one  who  will  not  have  an  appeal- 
able interest  nor  an  interest  which  will  or  may  be 
affected  by  the  appeal;  but  it  is  also  quite  clear  that 
service  of  any  kind  is  unnecessary  on  a  coparty  who 
has  no  appealable  interest  nor  any  interest  which  will 
or  may  be  affected  by  an  appeal.11 

He  should,  however,  be  served  when  he  has  an  ap- 
pealable interest,  and  is  similarly  affected  by  the  ruling 
of  the  lower  court,  or  when  he  has  an  interest  which 
will  or  may  be  affected  by  the  appeal.12 

A  plain  treatment  of  the  subject  requires  a  brief 
consideration  of  a  portion  of  the  statutes  relating  to 
appeals. 

The  statutes  relating  to  appeals  and  those  relating 
to  bills  of  exceptions  and  statements  of  facts  are  in 
pari  materia;  and  it  is  self-evident  that  the  service  of 
the  notice  of  appeal  and  the  service,  actual  and  con- 
structive, of  the  bill  or  statement  must  be  coextensive. 

The  statutes  relating  to  appeals  accordingly  provide 
as  follows: 

4 'All  parties  whose  interests  are  similarly  affected 
by  any  judgment  or  order  appealed  from  may  join  in 
the  notice  of  appeal  whether  it  be  given  at  the  time 
when  such  judgment  or  order  is  rendered  or  made,  or 
subsequently;  and  any  such  party  who  has  not  joined 
in  the  notice  may  at  any  time  within  ten  days,  after 
the  notice  is  given  or  served,  serve  an  independent 
notice  of  like  appeal,  or  join  in  the  appeal  already 
taken  by  filing  with  the  clerk  of  the  superior  court 

11  Sipes  v.  Puget  Sound  Electric  Ry.  Co.,  50  Wash.  585, 
97  Pac.  723. 

12  Robertson  Mortgage  Co.  v.  Thomas,  60  Wash.  514,  111 
Pac.  795. 


95  PROPOSAL   OP   BILL   OR   STATEMENT.  §  56 

a  statement  that  he  joins  therein  or  in  some  part 
thereof,  specifying  in  what  part.  Any  such  party  who 
does  not  so  join  shall  not  derive  any  benefit  from  the 
appeal  unless  from  the  necessity  of  the  case;  nor  can 
he  independently  appeal  from  any  judgment  or  order 
already  appealed  from,  more  than  ten  days  after  ser- 
vice upon  him  of  written  notice  of  the  former  appeal, 
unless  such  former  appeal  be  afterward  dismissed. 
All  parties  who  so  join  in  an  appeal  after  the  notice 
is  given  or  served  shall  be  liable  for  the  expenses 
thereof,  and  for  costs  and  damages  to  the  same  extent 
and  upon  the  same  conditions  as  if  they  had  originally 
joined  in  the  notice.  When  the  notice  of  appeal  is  not 
given  at  the  time  when  the  judgment  or  order  appealed 
from  is  rendered  or  made,  it  shall  be  served  in  the 
manner  required  by  law  for  the  service  of  papers  in 
civil  actions  and  proceedings,  upon  all  parties  who 
have  appeared  in  the  action  or  proceeding."1* 

The  statutes  relating  to  appeals  also  provide  as  fol- 
lows: "If  the  appeal  be  not  taken  at  the  time  when 
the  judgment  or  order  appealed  from  is  rendered  or 
made,  then  the  party  desiring  to  appeal  may,  by  him- 
self or  his  attorney,  within  the  time  prescribed  in  sec- 
tion 1718,  serve  written  notice  on  the  prevailing  parti/ 
or  his  attorney  that  he  appeals  from  such  judgment 
or  order  to  the  supreme  court,  and  within  five  days 
after  the  service  of  such  notice  he  shall  file  with  the 
clerk  of  the  superior  court  the  original  or  a  copy  of 
such  notice,  with  proof  or  the  written  admission  of 
the  service  thereof,  and  thereupon  the  clerk  shall  enter 
such  notice,  with  the  proof  or  admission  of  service 
thereof,  in  the  journal  of  the  court."1* 

13  Rem.  &  Bal.  Code,  §  1720. 

14  Bern.  &  Bal.  Code,  §  1719. 


§  56      BILLS  OP  EXCEPTIONS   AND  STATEMENTS  OF  PACTS.          96 

There  is  a  plain  distinction  between  a  "prevailing 
party"  and  an  "adverse  party."  To  prevail  means  to 
overcome.  The  phrase  therefore  contemplates  an  ad- 
versary upon  the  face  of  the  record.  To  prevail  also 
involves  the  idea  of  success,  at  least  to  some  extent. 
A  "prevailing  party"  may  therefore  be  defined  to 
be  an  adversary  upon  the  face  of  the  record  to  whom 
a  judgment  or  order  is  favorable  at  least  to  some  ex- 
tent, and  with  which  he  is  or  must  be  content. 

This  definition,  it  is  believed,  is  an  accurate  defini- 
tion of  the  phrase  as  it  is  employed  by  the  statutes 
in  contradistinction  to  an  adverse  party;  for  it  includes 
a  plaintiff  who  is  entirely  successful,  and  who  therefore 
must  be  content;  it  includes  also  a  defendant  who  has 
been  entirely  successful,  and  who  therefore  must  be 
content;  it  also  includes  a  plaintiff  who  has  succeeded 
only  partially,  but  who  nevertheless  is  content;  it 
also  includes  a  defendant  who  has  only  partially  suc- 
ceeded in  defeating  the  sought  for  recovery,  but  who 
nevertheless  is  content;  and  finally,  it  implies  that  an 
adversary  upon  the  face  of  the  record  is  not  content, 
for  if  he  were  content  there  would  be  no  appeal. 

On  the  other  hand,  the  word  adverse  means  to  be 
turned  against  from  any  angle  of  the  compass,  and 
therefore  the  phrase  "adverse  party"  may  be  defined 
to  be  every  party  whose  interests  are  turned  against, 
that  is,  liable  to  be  affected  by  the  interests  of  an  ap- 
pellant on  appeal,  whether  he  is  an  adversary  upon  the 
face  of  the  record  or  not.  " 

The  phrase  "adverse  party"  includes  the  "prevail- 
ing party,"  and  also  includes  those  who  do  not  prevail, 
but  whose  interests  may  nevertheless  be  affected  by  the 
appeal. 

u  See  §  55,  supra. 


97  PROPOSAL   OP  BILL   OB   STATEMENT.  §  56 

The  statutes  accordingly  provide  that ' '  the  party  ap- 
pealing shall  be  known  as  the  appellant,  and  the  ad- 
verse party  as  the  respondent."  18 

This  distinction  will  be  found  to  be  of  great  im- 
portance in  clarifying  a  consideration  of  some  of  the 
decisions  which  will  shortly  be  noted. 

This  clause,  "any  other  party  who  has  appeared  in 
the  cause,"  is  most  frequently  applied  to  coparties 
who  have  appealable  interests,  for  these  are,  as  a  gen- 
eral rule,  the  only  parties  who  are  similarly  affected 
by  the  ruling  of  the  lower  court,  and  who  may  there- 
fore join  in  an  appeal. 

The  contention  that  these  parties  will  in  no  manner 
be  affected  by  the  appeal  is  of  no  consequence  what- 
ever. 

The  statute  is  not  here  concerned  in  the  least  with 
that  fact.  Parties  who  will  or  may  be  affected  by  an 
appeal  are  already  fully  protected.  The  chief  concern 
of  the  statute  is  that  they  may  appeal,  and  its  object 
is  to  compel  them  to  appeal  quickly;  and  in  order  to 
accomplish  this  end,  requires  that  they  be  brought 
within  the  special  statutory  limitation  by  means  of 
the  service  of  the  notice  when  they  have  not  already 
been  brought  within  the  limitation  by  notice  given  at 
the  time  when  the  judgment  or  order  was  rendered  or 
made.  Their  appeals  will  necessarily  be  separate 
whether  they  appeal  independently  or  join  in  the  notice 
already  given,  for  the  simple  reason  that,  however 
taken,  their  appeals  will  have  no  concern  with  the 
other  appeal.  If  they  do  appeal,  the  cause  will,  there- 
fore, necessarily  be  appealed  by  piecemeal.  They  do 
not  become  parties  to  the  particular  appeal  already 
taken  merely  by  joining  in  the  notice  of  appeal  to  the 

"  Rem.  &  Bal.  Code,  §  1717. 

I 


§  56      BILLS   OF   EXCEPTIONS   AND    STATEMENTS   OF   PACTS.          98 

effect  that  they  also  appeal  on  their  own  behalf,  any 
more  than  they  become  parties  by  appealing  inde- 
pendently. They  merely  join  in  the  notice.  Two  or 
more  appeals  are  taken  by  a  single  notice,  and  in  that 
sense  only  do  they  join  in  the  appeal. 

The  rule  of  this  section,  namely,  that  the  clause 
"any  other  party  who  has  appeared  in  the  cause" 
means  any  party  who  has  appeared  in  the  cause,  has 
an  appealable  interest  therein,  and  who  may  join  in 
an  appeal  by  reason  of  the  fact  that  he  is  similarly 
affected  by  the  ruling  of  the  lower  court,  is  a  very 
vital  one,  since  it  involves  not  only  the  proper  service 
of  the  notice  of  appeal,  but  also  the  proper  construc- 
tive service  of  the  bill  or  statement;  but  while  it  is 
regularly  enforced,  it  is  nowhere  accurately  stated  by 
the  court. 

Thus,  in  endeavoring  to  make  the  principle  clear, 
the  court  says:  "While  it  is  true  that  section  6504 
directs  that  service  be  made  upon  all  parties  who  have 
appeared,  it  is  apparent  that  the  sole  purpose  of  such 
notice  to  appearing  parties,  other  than  the  prevailing 
one  mentioned  in  section  6503,  was  that  in  the  event 
of  their  having  an  interest  in  the  appeal,  they  might 
join  therein,  if  they  so  desired.  In  other  words,  the 
object  of  the  statute  was  to  require  all  interested 
parties  to  jointly  prosecute  their  appeals  and  cross- 
appeals  instead  of  bringing  them  to  this  court  by  piece- 
meal."17 

We  will  now  consider  the  first  sentence  ending  with 
the  word  "desired." 

Parties  other  than  the  prevailing  one,  and  having  an 
interest  in  the  appeal,  cannot  possibly  join  in  the 

"  Sipes  v.  Puget  Sound  Electric  Ry.  Co.,  50  Wash.  585, 
97  Pac.  723. 


99  PROPOSAL   OF   BILL   OB  STATEMENT.  §  56 

notice  of  appeal.  They  are  not  similarly  affected  by 
the  ruling  of  the  lower  court.  They  are  adverse 
parties;  and  it  would  therefore  be  impossible  to  frame 
a  notice  of  appeal  in  which  they  logically  could  join. 
To  require  their  joining  in  the  notice  of  appeal  would 
be  to  require  the  novel  and  forbidden  proceeding  of 
prosecuting  an  appeal  against  themselves. 

The  statute  provides  that  * '  the  party  appealing  shall 
be  known  as  the  appellant,  and  the  adverse  party  as  the 
respondent,  and  they  shall  be  so  designated  in  all 
papers  in  the  cause  after  the  notice  of  appeal  shall 
have  been  given  or  served;  but  the  title  of  the  cause 
shall  in  other  respects  remain  unchanged. ' ' 18 

Being  adverse  parties,  they  must  be  named  in  sub- 
sequent proceedings  as  respondents  and  cannot  there- 
fore be  appellants  in  the  same  appeal.  Since  they 
cannot  be  appellants  in  the  same  appeal,  it  follows  that 
they  cannot  join  in  the  same  appeal. 

We  are  therefore  unerringly  led  to  the  conclusion  that 
this  announcement  in  its  consideration  only  of  parties 
other  than  the  prevailing  one,  and  having  an  interest 
in  the  appeal,  not  only  overlooks  the  fact  that  these 
very  same  parties  cannot  possibly  join  in  the  appeal ; 
but  also  overlooks  the  parties  whom  this  section  is 
especially  considering,  namely,  those  parties  who  have 
appeared  in  the  cause,  have  appealable  interests 
therein,  and  who  may  join  in  an  appeal  by  reason  of 
the  fact  that  they  are  similarly  affected  by  the  ruling 
of  the  lower  court;  and  that  in  thus  overlooking  them, 
it  overlooks  the  only  parties  who  can  join  in  an  appeal. 

The  notice  of  appeal  is  not  to  be  directed  to  or 
against  this  "any  other  party  who  has  appeared  in 
the  cause";  and,  with  the  exception  of  the  title  of  the 

18  Rem.  &  Bal.  Code,  §  1717. 


§  56      BILLS   OP   EXCEPTIONS   AND   STATEMENTS    OP   PACTS.        100 

cause  in  which  he  is  necessarily  designated  as  one  of 
the  parties  to  the  cause,  he  is  not  even  to  be  mentioned 
in  the  notice  of  appeal  unless  he  joins  therein  in  the 
first  instance;  for  he  is  not  an  adverse  party,  and  he 
is  not  an  appellant  unless  he  joins  in  the  appeal. 

It  is  true  that  the  statute  requires  that  the  notice 
of  appeal  shall  be  served  upon  the  adverse  parties,  and 
also  upon  this  "any  other  party  who  has  appeared 
in  the  cause,"  but  the  notice  is  not  to  be  directed  to 
or  against  this  latter  party,  nor  is  the  notice  to  be 
understood  as  being  impliedly  directed  to  or  against 
this  party;  for,  if  he  should  join  in  the  notice,  he  would, 
upon  such  a  theory,  be  joining  in  a  proceeding  against 
himself,  and  this  has  been  shown  to  be  impossible,  for 
he  cannot  be  a  respondent  since  he  is  not  an  adverse 
party. 

The  statutes  do  not  contemplate  that  a  party  shall 
be  required  at  any  time  to  take  positions  which  are 
even  apparently  contradictory  and  antagonistic  to 
each  other;  and  therefore  the  opposing  parties  in  tha 
body  of  the  notice  of  appeal  are  the  same  as  the 
-.opposing  parties  in  the  subsequent  proceedings. 

In  fact,  the  statutory  provision  above  quoted  so 
provides  by  expressly  naming  the  "party  appealing" 
and  the  "adverse  party,"  and  by  merely  postponing 
:the  change  in  their  designations  to  "appellant"  and 
"respondent"  until  subsequent  proceedings  are  taken. 

It  has  been  said  that  the  notice  of  appeal  is  sufficient 
if  it  be  directed  to  the  prevailing  parties,  and  "that 
it  would  seem  ....  that  when  the  notice  is  properly 
entitled  as  of  the  action  in  which  the  appeal  is  taken, 
and  informs  the  parties  to  the  action  who  the  appel- 
lants are,  and  the  judgment  or  part  of  the  judgment 
appealed  from,  it  complies  with  all  the  requisites  of 


101  PROPOSAL   OP  BILL,   OR   STATEMENT.  §  56 

a  proper  notice,  and,  consequently,  with  the  directions 
of  the  statute."" 

The  statutes  are  plainly  to  the  contrary.  But  as- 
suming that  this  is  the  rule,  the  notice  of  appeal,  even 
though  it  contains  no  express  designations,  is  impliedly 
directed  against  the  adverse  parties  who  are  subse- 
quently named  as  respondents;  and  therefore  to  re- 
quire parties  other  than  the  prevailing  one,  and  having 
an  interest  in  the  appeal,  to  join  in  the  notice  of  appeal 
is  also  to  require  the  novel  and  forbidden  proceeding 
of  their  joining  in  a  notice  which  is  impliedly  directed 
against  themselves. 

The  manifest  object  of  the  statute  in  requiring  that 
the  notice  of  appeal  shall  be  served  upon  this  ''any 
other  party  who  has  appeared  in  the  cause,"  when  he 
does  not  join  therein  in  the  first  instance,  is  that  he 
may  be  brought  within  the  special  statutory  limitation 
applicable  to  him.  Incidentally,  he  is  given  the  privi- 
lege of  either  joining  in  the  appeal  already  taken  as 
appellant,  or  of  taking  an  independent  appeal.  If  he 
joins,  the  joinder  will  be  perfectly  logical;  for  in  that 
event  he  merely  becomes  an  appellant  in  his  own  behalf 
because  he  has  an  appealable  interest  and  is  similarly 
affected  by  the  ruling  of  the  lower  court.  He  will  not 
become  a  respondent  because  he  is  not  an  adverse 
party;  that  is,  he  will  not  be  affected  by  the  appeal 
of  his  coappellant.  If  he  does  not  join  in  the  appeal 
he  will  be  designated  in  the  subsequent  proceedings 
just  as  he  was  designated  in  the  lower  court;  that  is, 
if  he  was  a  defendant  in  the  lower  court,  and  does  not 
join  in  the  appeal,  he  will  be  designated  in  the  title 

19  Smalley  v.  Laugenour,  30  Wash.  307,  70  Pac.  786.  See, 
also,  Philadelphia  Mortgage  &  Trust  Co.  v.  Palmer,  32  Wash. 
455,  73  Pac.  501. 


§  56      BILLS   OP  EXCEPTIONS   AND   STATEMENTS   OP   PACTS.       102 

of  the  cause  on  appeal  as  a  defendant,  for  he  will 
neither  be  a  respondent  nor  an  appellant. 

The  court  has  overlooked  the  distinction  between  a 
party  "having  an  interest  in  the  appeal"  and  a  party 
having  an  appealable  interest,  and  who  may  join  in 
an  appeal. 

One  may  not  have  the  slightest  interest  in  an  appeal, 
and  still  be  a  party  who  may  join  in  the  appeal,  because 
he  has  an  appealable  interest  and  is  similarly  affected 
by  the  ruling  of  the  lower  court,  and  may  be,  therefore, 
one  who  must  be  served  with  the  notice  of  appeal,  and 
with  the  notice  of  the  filing  of  the  bill  or  statement. 

Thus,  on  appeal  by  one  or  more  defendants  from  a 
decree  of  foreclosure  adjudging  that  the  claims  and 
interests  of  all  the  defendants  are  subsequent  and  sub- 
ordinate to  the  interests  of  the  plaintiff,  and  barring  all 
the  defendants  from  asserting  any  claim  other  than  was 
specified  in  the  decree,  the  nonappealing  codefendants 
who  were  similarly  affected  by  the  ruling  of  the  lower 
court,  that  is,  those  who  were  in  the  same  position  as  the 
appealing  codefendants,  had  not  the  slightest  interest  in 
the  appeal  of  the  appealing  codefendants,  because  they 
could  not  be  affected  by  it,  though  they  might  be  bene- 
fited by  it  * '  from  the  necessity  of  the  case ' '  as  the  stat- 
ute puts  it.  And  yet  it  was  necessary  to  serve  them 
with  the  notice  of  appeal.  Why?  Because  though 
not  "having  an  interest  in  the  appeal,"  they  had  ap- 
pealable interests,  and  were  similarly  affected  by  the 
ruling  of  the  lower  court;  that  is,  they  might  appeal, 
and  being  similarly  affected,  they  might  join  in  the 
appeal,  or  appeal  independently.  An  appealable  in- 
terest is  not  an  interest  in  any  appeal  which  has  been 
taken,  but  an  interest  which  will  enable  one  to  take 
an  appeal.  These  are  the  parties  whom  the  clause 
"any  other  party  who  has  appeared  in  the  cause" 


103  PROPOSAL   OF   BILL   OR   STATEMENT.  §  56 

refers  to,  and  with  whom  it  is  particularly  concerned; 
for  they  may  appeal;  and,  as  was  before  observed,  it 
is  the  object  of  the  statute  to  compel  them  to  appeal 
quickly  by  requiring  that  they  be  brought  within  the 
special  ten  day  limitation  by  means  of  the  service  of 
the  notice  of  appeal,  when  they  have  not  already  been 
brought  within  such  special  statutory  limitation  by 
notice  given  at  the  time  when  the  judgment  or  order 
was  rendered  or  made.  The  fact  that  they  have  no 
interest  in  the  appeal  is  of  no  consequence  whatever.20 

This  provision  of  the  statute  relating  to  these  parties 
was  plainly  framed  for  the  benefit  of  the  court,  and  is 
intended  to  compel  these  parties  to  appeal  quickly,  so 
that  the  labors  of  the  court  will  not  be  endlessly  de- 
voted to  a  single  cause;  and  the  idea  that  it  was  the 
object  of  the  statute  to  discourage  appeals  by  piece- 
meal is  not  tenable;  for  if  these  parties  appeal,  the 
cause  must  necessarily  be  brought  to  the  supreme  court 
by  piecemeal. 

The  court  in  the  second  sentence  quoted,  in  endeavor- 
ing to  put  this  rule  still  clearer,  says :  "  In  other  words, 
the  object  of  the  statute  was  to  require  all  interested 
parties  to  jointly  prosecute  their  appeals  and  cross- 
appeals  instead  of  bringing  them  to  'this  court  by  piece- 
meal. ' ' 

But  it  is  plain  from  the  foregoing  observations  that 
the  same  error  has  been  made  here  as  was  made  in 
the  preceding  announcement. 

In  further  endeavoring  to  make  this  matter  clear 
the  court  says:  "It  was  the  object  of  the  law  to  enforce 
notice  of  appeal  on  parties  who  could  appeal  or  join 
in  an  appeal,  and  whose  rights  would  or  might  be 

20  See  Robertson  Mortgage  Co.  v.  Thomas,  60  Wash.  514, 
111  Pac.  795. 


§  56      BILLS   OP   EXCEPTIONS  AND   STATEMENTS   OF   PACTS.        104 

affected  by  some  action  which  the  appellate  court 
might  take.'11 21 

Parties  who  can  appeal,  that  is,  parties  having  ap- 
pealable interests  and  who  can  join  in  an  appeal 
because  their  interests  are  similarly  affected  by  the 
ruling  of  the  lower  court,  must  be  served  with  the 
notice  of  appeal  though  their  interests  neither  will  nor 
may  be  affected  by  any  action  which  the  appellate  court 
might  take.22 

Thus  it  is  seen  that  the  court  has  once  more  inac- 
curately announced  the  real  holding. 

It  may  be  contended  that  the  court  in  this  last  an- 
nouncement intended  to  state  the  broad  rule  governing 
all  parties  who  must  be  served. 

Assuming  that  this  is  the  case,  the  broad  rule  is  not 
correctly  announced,  for  the  relative  "whose"  un- 
erringly refers  to  parties  "who  could  appeal  or  join 
in  an  appeal,"  and  parties  who  cannot  appeal,  but 
whose  interests  will  or  may  be  affected  by  the  appeal, 
are  not  considered. 

If  the  demonstrative  "those"  were  inserted  before 
the  relative  "whose"  and  the  words  "appeal  or" 
were  omitted,  the  announcement  would  perhaps  state 
the  broad  rule  correctly,  for  it  would  then  read  as 
follows : 

' '  It  was  the  object  of  the  law  to  enforce  notice  of  ap- 
peal on  parties  who  could  join  in  an  appeal,  and  on 
those  whose  rights  would  or  might  be  affected  by  some 
action  which  the  appellate  court  might  take. ' ' 

It  is  very  plain  that  it  is  not  necessary  to  serve 
everyone  who  could  appeal  with  the  notice  of  appeal. 

21  Robertson  Mortgage  Co.  v.  Thomas,  60  Wash.  514,  111 
Pac.  795. 

22  Robertson  Mortgage  Co.  v.  Thomas,  60  Wash.  514   111 
Pac.  796. 


105  PROPOSAL   OP   BILL   OR   STATEMENT.  §  56 

Thus,  in  the  statement  of  a  prominent  holding,  the 
court  says:  "This  action  was  commenced  by  Henry 
Sipes  against  the  Puget  Sound  Electric  Railway  Com- 
pany, a  corporation,  and  W.  S.  Dimmock,  to  recover 
damages  for  personal  injuries.  The  defendants  ap- 
peared by  the  same  attorneys,  but  answered  separately. 
On  a  jury  trial  a  verdict  was  returned,  upon  which 
judgment  was  entered  in  favor  of  the  plaintiff  and 
against  the  Puget  Sound  Electric  Railway  Company, 
for  $7,000  damages,  and  judgment  was  also  entered  in 
favor  of  the  defendant  W.  S.  Dimmock  against  the 
plaintiff,  Henry  Sipes.  The  defendant  the  Puget 
Sound  Electric  Railway  Company  has  appealed." 

Here  the  plaintiff,  Henry  Sipes,  is  the  adverse  party 
because  he  will  or  may  be  affected  by  the  appeal. 

Dimmock  is  not  an  adverse  party  because  he  cannot 
be  affected  by  the  appeal.  Nor  is  he  a  party  who  may 
join  in  or  take  an  independent  appeal  as  he  chooses, 
for  he  has  no  appealable  interest,  and,  of  course,  is  not 
similarly  affected  by  the  ruling  of  the  lower  court. 

The  appellant  is  not,  therefore,  required  to  serve 
anything  upon  Dimmock,  his  codefendant. 

If,  however,  Sipes  had  appealed,  Dimmock  would 
have  been  the  adverse  party,  because  he  would  or  might 
have  been  affected  by  the  appeal.  It  would,  therefore, 
in  such  a  case,  be  necessary  to  serve  him  with  the  no- 
tice of  appeal.  The  Puget  Sound  Electric  Railway 
Company  would  not  be  affected  by  such  an  appeal, 
for  the  plaintiff  was  successful  as  against  this  defend- 
ant, and  the  appeal  could  only  affect  Dimmock.  The 
Puget  Sound  Electric  Railway  Company  would,  how- 
ever, have  an  appealable  interest,  because  it  might  also 
appeal  as  against  Sipes;  but  it  could  not  join  in  the 
notice  of  appeal  of  Sipes  because  it  would  not  be  sim- 
ilarly affected  by  the  ruling  of  the  lower  court. 


§  57      BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OP   PACTS.        106 

Not  being  affected  by  the  appeal  of  Sipes,  and  not 
being  similarly  affected  by  the  ruling  of  the  lower 
court,  it  would  not  be  entitled  to  service  of  the  notice 
of  appeal.  It  was  neither  affected  by  the  appeal  nor 
could  it  join  in  the  notice  of  appeal,  although  it  had 
an  appealable  interest;  that  is,  although  it  could  ap- 
peal. If  one  will  not  be  affected  by  an  appeal,  but 
nevertheless  has  an  appealable  interest,  he  must  also 
have  the  right  to  join  in  the  notice  of  appeal  before  he 
becomes  entitled  to  service  of  the  notice  of  appeal. 

With  perfect  deference  to  the  court  the  author  sug- 
gests that  the  broad  rule  of  the  statutes  governing  all 
parties  who  must  be  served  with  the  notice  of  appeal, 
and,  actually  and  constructively,  with  the  bill  or  state- 
ment, may  be  stated  as  follows : 

It  was  the  object  of  the  law  to  enforce  service,  first, 
on  all  parties  who  will  or  may  be  affected  by  the  ap- 
peal; and,  secondly,  on  any  other  party  who  has 
appeared  in  the  cause,  has  an  appealable  interest 
therein,  and  who  may  join  in  an  appeal  by  reason  of 
the  fact  that  he  is  similarly  affected  by  the  ruling  of 
the  lower  court. 

This  latter  party  is  the  "any  other  party  who  has 
appeared  in  the  cause." 

§  57.  (g)  The  Various  Methods  of  Serving  the 
Proposed  Bill  or  Statement.— There  are  no  statutory 
provisions  which  relate  to  or  govern  the  service  of  the 
proposed  bill  or  statement. 

With  the  exception  of  the  statutory  provisions  re- 
lating to  and  governing  the  service  of  the  notice  of 
appeal,  which  will  be  shortly  noticed,  the  only  statu- 
tory provisions  relating  to  or  governing  the  service  of 
papers  are  parts  of  an  act  entitled,  "An  act  to  provide 


107  PROPOSAL   OP   BILL   OB   STATEMENT.  §  57 

for  the  manner  of  commencing  civil  actions  in  the  su- 
perior courts,  and  bringing  the  same  to  trial."23 

The  service  of  the  notice  of  appeal  is  fully  provided 
for  by  statute  as  follows: 

"When  the  notice  of  appeal  is  not  given  at  the  time 
when  the  judgment  or  order  appealed  from  is  rendered 
or  made,  it  shall  be  served  in  the  manner  required  by 
law  for  the  service  of  papers  in  civil  actions  and  pro- 
ceedings, upon  all  parties  who  have  appeared  in  the 
action  or  proceeding;  provided,  that  where  the  record 
and  files  in  the  cause  do  not  disclose  the  address  of  a 
party  on  whom  notice  should  be  made,  or  of  his  attor- 
ney, and  neither  such  party  nor  his  attorney  can  be 
found  within  the  county  in  which  the  judgment  or  or- 
der appealed  from  was  rendered  or  made  (of  which 
fact  a  return  by  the  sheriff  that  they  cannot  be  so 
found  shall  be  proof),  the  notice  of  appeal  need  not 
be  served  on  such  party,  but  the  appeal  may  be  taken 
by  filing  the  notice  and  such  sheriff's  return  with  the 
clerk.  Service  on  an  attorney  who  was  the  attorney 
of  record  for  a  party  in  the  cause  at  the  time  when  the 
judgment  or  order  appealed  from  was  rendered  or 
made,  shall  be  deemed  service  on  such  party  in  all 
cases  where  service  is  required  by  this  title. ' ' 24 

Thus  it  appears  that  the  service  of  the  notice  of 
appeal  is  well  provided  for.  This,  however,  is  as  far 
as  the  statutes  attempt  to  make  provision  for  the  ser- 
vice of  any  papers  in  appellate  proceedings. 

23  See  National  Bank  of  Commerce  of  Seattle  v.  Seattle 
Pickle  &  Vinegar  Works,  15  Wash.  126,  45  Pac.  731;  Galler 
v.  McMahon,  51  Wash.  473,  99  Pac.  309. 

**  Eem.  &  Bal.  Code,  §  1720. 


§  57      BILLS  OP  EXCEPTIONS  AND  STATEMENTS   OP   PACTS.       108 

But,  in  the  absence  of  statutory  provisions,  the  su- 
preme court  may,  no  doubt,  by  its  rules,  provide  for 
and  regulate  appellate  practice  and  procedure.25 

Pursuant  to  its  undoubted  authority,  the  supreme 
court  has  adopted  the  following  rules  which  are  appli- 
cable to  the  service  of  the  proposed  bill  or  statement: 

"Service  of  papers  must  in  all  cases  be  made  upon 
the  attorney  of  record  of  a  party,  if  he  have  one,  unless 
the  place  of  business  or  residence  of  such  attorney  is 
unknown,  when  it  may  be  made  upon  the  party. ' ' 26 

' '  Service  of  papers  may  be  made  as  follows : 

"(1)  If  upon  an  attorney,  by  delivering  to  him  per- 
sonally, or  at  his  office  by  delivery  to  his  clerk  or  to 
the  person  having  charge  thereof;  or  if  his  office  be  not 
open,  or  there  be  no  one  in  charge  thereof,  at  his  resi- 
dence by  delivery  to  some  person  of  suitable  age  and 
discretion;  or,  if  neither  of  the  foregoing  methods  can 
be  followed,  by  deposit  in  the  postoffice  to  his  address, 
with  postage  prepaid:  Provided,  that  in  capital  cases 
a  motion  to  dismiss  an  appeal  shall  be  served  upon  the 
defendant  personally,  as  well  as  upon  the  attorney  of 
record. 

"(2)  If  upon  a  party,  by  delivery  to  him  person- 
ally, or  at  his  residence  by  delivery  to  some  person  of 
suitable  age  and  discretion,  between  the  hours  of  9 
o'clock  in  the  forenoon  and  9  o'clock  in  the  even- 
ing."27 

**  See  in  this  connection,  Western  American  Co.  v.  St. 
Ann  Co.,  22  Wash.  158,  60  Pac.  158;  Horr  v.  Aberdeen 
Packing  Co.,  7  Wash.  354,  35  Pac.  125. 

26  Rule  XVIII  of  the  Rules  of  the  Supreme  Court,  subd. 
(2).     See  §  37,  supra. 

27  Rule  XIX  of  the  Rules  of  the  Supreme  Court.     See 
§  38,  supra. 


109  PROPOSAL   OF   BILL   OR   STATEMENT.  •       §  57 

"Where  the  residence  of  a  party  and  that  of  his 
attorney  of  record,  if  he  have  one,  are  not  known,  the 
service  may  be  made  upon  the  clerk  of  the  superior 
court  in  which  the  cause  was  tried,  for  the  party  or 
attorney. ' ' 28 

"  (1)  Service  may  be  made  by  mail  when  the  person 
making  the  service  and  the  person  on  whom  such  ser- 
vice is  to  be  made  reside  in  different  places  between 
which  there  is  regular  communication  by  mail.  Post- 
age must  in  such  cases  be  prepaid. 

"(2)  Time  shall  begin  to  run  from  the  date  of  de- 
posit in  the  postoffice."  29 

These  rules,  it  will  be  observed,  are  quite  similar  to 
the  statutory  provisions.80 

The  service  of  the  proposed  bill  or  statement  is, 
therefore,  governed  by  the  above  rules  of  the  supreme 
court. 

The  notice  of  appeal  may  be  served  by  mail.81 

And  by  analogy  the  proposed  bill  or  statement  may 
also  be  served  by  mail.82 

The  service  by  mail  is  completed  when  the  copy  is 
deposited  in  the  postomce,  properly  addressed,  and 
with  postage  prepaid.38 

28  Rule  XX  of  the  Rules  of  the  Supreme  Court.     See  §  39, 
supra. 

29  Rule  XXI  of  the  Rules  of  the  Supreme  Court.     See  §  39, 
supra. 

80  See  Rem.  &  Bal.  Code,  §§  244-248. 

81  See  Horr  v.  Aberdeen  Packing  Co.,  7  Wash.  354,  35 
Pac.  125 ;  De  Roberts  v.  Stiles,  24  Wash.  611,  64  Pac.  695. 
See,  also,  Home  Savings  &  Loan  Assn.  v.  Burton,  20  Wash. 
688,  56  Pac.  940. 

82  State  ex  rel.  Palmer  Mountain  Tunnel  &  Power  Co.  v. 
Superior  Court,  63  Wash.  442,  115  Pac.  845. 

83  State  ex  rel.  Palmer  Mountain  Tunnel  &  Power  Co.    v. 
Superior  Court,  63  Wash.  442,  115  Pac.  845.     The  court  in 


§  57      BILLS   OF   EXCEPTIONS   AND   STATEMENTS    OP   FACTS.        110 

The  service  of  the  proposed  bill  or  statement  is  not, 
of  course,  sufficient  where  both  parties  reside  in  the 
same  place.84 

Service  of  the  notice  of  appeal  may  be  made  upon 
the  clerk  of  the  superior  court  where  the  record  and 
files  in  the  cause  do  not  disclose  the  address  of  a  party 
on  whom  notice  should  be  made,  or  of  his  attorney, 
and  neither  such  party  nor  his  attorney  can  be  found 
within  the  county  in  which  the  judgment  or  order  ap- 
pealed from  was  rendered  or  made;  but  by  special  stat- 
utory provision  the  return  of  the  sheriff  that  they  can- 
not be  so  found  is  the  only  competent  evidence  of  such 
fact.35 

By  analogy  the  proposed  bill  or  statement  may  also 
be  served  upon  the  clerk  of  the  superior  court  where 
the  residence  of  a  party,  and  that  of  his  attorney  of 
record,  if  he  have  one,  are  not  known,  and  where  the 
service  as  prescribed  by  the  rules  of  court  cannot  oth- 
erwise be  made ;  and  while  the  rules  of  the  court  do  not 
prescribe  a  return  of  the  sheriff  that  neither  such 
party  nor  his  attorney  can  be  found  within  the  county 

this  last  case  seems  to  treat  the  statutes  as  applicable,  though 
it  recognizes  their  deficiency  in  not  fixing  a  time  when  the 
service  shall  be  deemed  complete;  whereas  the  rules  of  the 
supreme  court  exactly  fit  the  case,  contain  what  the  statutes 
omit,  and  are  in  consonance  with  the  decision  of  the  court. 
The  cases  of  National  Bank  of  Commerce  of  Seattle  v. 
Seattle  Pickle  &  Vinegar  Works,  15  Wash.  126,  45  Pac.  731, 
and  Galler  v.  McMahon,  51  Wash.  473,  99  Pac.  309,  supra, 
have  again  been  overlooked. 

14  See  the  following  case  which  holds  that  the  notice  of 
the  settlement  and  certification  served  under  such  condi- 
tions was  insufficient:  Bowen  v.  Cain,  7  Wash.  469,  35  Pac. 
369. 

si  Cornell  University  v.  Denny  Hotel  Co.,  15  Wash.  433, 
46  Pac.  654. 


Ill  PROPOSAL   OF   BILL   OR   STATEMENT.  §  57 

in  which  the  judgment  or  order  appealed  from  was  ren- 
dered or  made,  still,  such  a  return  would,  no  doubt,  be 
advisable,  in  addition  to  an  affidavit  showing  the  facts 
required  by  the  rules  of  court. 

The  case  of  National  Bank  of  Commerce  of  Seattle  v. 
Seattle  Pickle  &  Vinegar  Works,  15  Wash.  126,  45  Pac. 
731,  supra,  was,  in  one  instance,  overlooked  by  the 
court,  and  as  a  consequence  a  decision  upon  this  sub- 
ject was  based  upon  a  supposed  applicability  of  the 
statutes;  but  the  decision  was  supported  also  by  the 
rules  of  the  supreme  court. 

Thus,  upon  a  supposed  applicability  of  the  statutes, 
it  was  held  that  the  service  of  a  proposed  bill  or  state- 
ment on  appeal,  made  upon  a  clerk,  is  insufficient  when 
the  attorney  himself  is  present  in  the  office.36 

It  is  not  necessary  to  the  service  that  the  copy  of  the 
proposed  bill  or  statement  which  is  served  should  have 
a  copy  of  the  file-marks  placed  upon  the  original  which 
was  filed  with  the  clerk  of  the  superior  court.37 

Nor  is  it  necessary  to  serve  upon  the  adverse  party 
a  notice  of  the  filing  of  the  original  bill  or  statement 
with  the  clerk  of  the  superior  court.88 

36  Times  Printing  Co.  v.  Seattle,  25  Wash.  149,  64  Pac. 
940. 

37  Spokane  &  Idaho  Lumber  Co.  v.  Loy,  21  Wash.  501, 
58  Pac.  672,  60  Pac.  1119. 

88  Bennett  v.  Supreme  Tent  of  the  Knights  of  Maccabees 
of  the  World,  40  Wash.  431,  2  L.  R.  A.,  N.  S.,  389,  82  Pac. 
744.  See  the  following  earlier  case  where  the  court  held  that 
the  failure  to  serve  the  adverse  party  with  written  notice  of 
the  filing  of  the  proposed  bill  or  statement  is  waived  where 
the  adverse  party  voluntarily  appears  and  moves  to  strike 
the  proposed  bill  or  statement,  and  excepts  to  the  ruling 
of  the  court  overruling  the  motion:  Hansen  v.  Nilson,  17 
Wash.  606,  50  Pac.  511. 


§  58      BILLS   OP   EXCEPTIONS  AND   STATEMENTS   OP   FACTS.        112 

The  service  of  the  proposed  bill  or  statement  by  leav- 
ing it  at  the  office  of  one  of  respondent's  attorneys, 
with  a  man  whom  appellant's  attorney  supposed  to  be 
the  clerk  of  said  attorney,  but  who  appeared  not  to 
have  been  such,  has  been  held  to  be  insufficient." 

§  58.  (h)  Upon  Whom  It  is  Necessary  to  Serve  the 
Proposed  Bill  or  Statement. — The  statute  provides 
that  "a  party  desiring  to  have  a  bill  of  exceptions  or 
statement  of  facts  certified  must  prepare  the  same  as 
proposed  by  him,  file  it  in  the  cause  and  serve  a  copy 
thereof  on  the  adverse  party,  and  shall  also  serve  writ- 
ten notice  of  the  filing  thereof  on  any  other  party  who 
has  appeared  in  the  cause."  Two  kinds  of  service  are 
thus  provided  for,  namely: 

1.  Actual  service  by  the  service  of  a  copy  of  the  orig- 
inal bill  or  statement  on  the  adverse  party;  and 

2.  Constructive  service  by  the  filing  of  the  original 
bill  or  statement  with  the  clerk  of  the  superior  court, 
and  by  the  service  of  written  notice  of  the  filing 
thereof  on  any  other  party  who  has  appeared  in  the 
cause*0 

It  has  been  shown  in  section  55  of  this  work  that  the 
phrase  "adverse  party"  means  every  party  whose  in- 
terest in  the  subject  matter  of  the  appeal  is  adverse 
to  or  will  be  affected  by  the  reversal  or  modification 
of  the  judgment  or  order  from  which  the  appeal  has 
been  taken,  irrespective  of  the  question  whether  he 
appears  upon  the  face  of  the  record  in  the  attitude  of 
plaintiff  or  defendant,  or  intervenor.*1 

89  Driscoll  v.  Dufur,  45  Wash.  494,  88  Pac.  929. 

40  Rem.  &  Bal.  Code,  §  389.     See  §  10,  supra. 

41  Seattle  Trust  Co.  v.  Pitner,  17  Wash.  365,  49  Pac.  505. 
See,  also,  Bruhn  v.  Steffins,  24  Wash.  Dec.  78,  119  Pac.  29. 


113  PROPOSAL   OP   BILL   OR   STATEMENT.  §  58 

It  has  also  been  shown  in  section  56  of  this  work 
that  the  clause  "any  other  party  who  has  appeared  in 
the  cause"  means  any  party  who  has  appeared  in  the 
cause,  has  an  appealable  interest  therein,  and  who  may 
join  in  an  appeal  by  reason  of  the  fact  that  he  is  simi- 
larly affected  by  the  ruling  of  the  lower  court. 

It  follows,  therefore:  1.  That  the  copy  of  the  orig- 
inal bill  or  statement  must  be  served  upon  every  party 
whose  interest  in  the  subject  matter  of  the  appeal  is 
adverse  to  or  will  be  affected  by  the  reversal  or  modi- 
fication of  the  judgment  or  order  from  which  the  ap- 
peal has  been  taken,  irrespective  of  the  question 
whether  he  appears  upon  the  face  of  the  record  in  the 
attitude  of  plaintiff  or  defendant,  or  intervenor.42 

2.  That  the  notice  of  the  filing  of  the  original  bill 
or  statement  must  be  served  on  parties  who  have  ap- 
peared in  the  cause,  have  an  appealable  interest 
therein,  and  who  may  join  in  an  appeal  by  reason  of 
the  fact  that  they  are  similarly  affected  by  the  ruling 
of  the  lower  court. 

It  was  held  in  an  early  case  that  when  the  notice  of 
the  filing  is  not  served  pursuant  to  the  requirements 
of  the  statute,  the  bill  or  statement  will,  on  motion,  be 
stricken  from  the  cause.43 

The  motion  should,  no  doubt,  be  made  in  the  lower 
court.44 

The  notice  need  not  be  served  upon  the  adverse 
party.  In  this  connection  the  reader's  attention  is 
called  to  the  following  early  and  curious  ruling  to  the 
effect  that  failure  to  serve  the  adverse  party  with  writ- 

42  See  Howard  v.  Shaw,  10  Wash.  151,  38  Pac.  746. 

43  See  First  National  Bank  of  Aberdeen  v.  Andrews,  11 
Wash.  409,  39  Pac.  672. 

**  See  §  120,  infra. 

8 


§  58      BILLS   OP   EXCEPTIONS   AND   STATEMENTS    OP   FACTS.        114 

ten  notice  of  the  filing  of  the  proposed  bill  or  statement 
is  waived  where  the  adverse  party  voluntarily  appears 
and  moves  to  strike  the  proposed  bill  or  statement, 
and  excepts  to  the  ruling  of  the  court  overruling  the 
motion.46 

Some  illustrations  of  this  service  may,  perhaps,  with 
some  profit  be  given;  and  the  author  will,  therefore, 
select  three  prominent  cases  in  which  it  will  be  as- 
sumed, simply  for  the  purposes  of  the  illustrations,  that 
service,  actual  and  constructive,  of  the  bill  or  state- 
ment was  necessary. 

Thus,  on  appeal  by  one  or  more  unsuccessful  defend- 
ants, less  than  the  whole,  from  a  judgment  and  decree 
of  foreclosure  adjudging  that  the  claims  and  interests 
of  all  the  defendants  are  subsequent  and  subordinate 
to  the  interests  of  the  plaintiff  in  whose  favor  the 
judgment  and  decree  was  rendered  and  barring  all  the 
defendants  from  asserting  any  claim  as  superior  to  that 
of  the  plaintiff,  the  plaintiff  is  the  adverse  party  upon 
whom  a  copy  of  the  bill  or  statement  must  be  served, 
because  he  will  or  may  be  affected  by  the  appeal.  The 
nonappealing  codefendants  are  the  "any  other  parties 
who  have  appeared  in  the  cause,"  and  are  the  parties 
upon  whom  the  notice  of  the  filing  of  the  bill  or  state- 
ment must  be  served,  because  they  have  appeared  in 
the  cause,  have  no  interest  whatever  in  the  appeal,  but 
have  appealable  interests  in  the  cause,  and  may  join  in 
the  appeal,  or  take  independent  appeals,  by  reason  of 
the  fact  that  they  are  similarly  affected  by  the  ruling 
of  the  lower  court.  By  being  similarly  affected  is 
meant  that  they  have  all  been  similarly  ruled  against. 
Whether  they  join  in  the  appeal,  or  take  independent 
appeals,  they  will  still  have  no  interest  whatever  in 
the  appeal  of  the  appealing  codefendants.  Each  one 

*  Han&en  v.  Nilson,  17  Wash.  606,  50  Pac.  511. 


115  PROPOSAL   OF   BILL   OR   STATEMENT.  §  58 

will  still  be  compelled  to  fight  out  his  own  battle  on  his 
own  grounds.  The  taking  and  effecting  an  appeal 
merely  involves  the  giving  or  service  of  the  notice  of 
appeal  and  the  filing  of  the  bond  on  appeal.48 

Thus,  again,  on  appeal  in  the  same  case  by  the  same 
codefendants  from  an  order  confirming  the  sale  of  the 
real  property: 

It  appears  in  this  case  that  there  was  a  judgment 
and  decree  of  foreclosure  adjudging  that  the  claims 
and  interests  of  all  the  defendants  are  subsequent  and 
subordinate  to  the  interests  of  the  plaintiff  in  whose 
favor  the  judgment  and  decree  was  rendered,  and 
barring  all  the  defendants  from  asserting  any  claim 
other  than  that  which  was  specified  in  the  decree, 
namely,  an  adjudication  that  a  certain  party,  who  was 
not  made  a  party  in  the  pleadings,  is  entitled  to  a  deed 
to  one  of  the  lots  involved  as  assignee  of  one  of  the 
defendants,  and  that  the  supreme  court  held  that  this 
one  whose  specified  claim  was  established  became  a 
party  by  such  adjudication,  and  that  the  notice  of  ap- 
peal should  therefore  be  served  upon  him. 

The  court  also  held  that  the  purchaser  of  a  portion 
of  the  property  at  public  sale  became  a  party  by  vir- 
tue of  the  purchase,  and  that  the  notice  of  appeal 
should  be  served  upon  him  because  he  would  or  might 
be  affected  by  the  appeal. 

We  have,  therefore,  in  this  case  the  following  par- 
ties: 

1.  The  appealing  defendants,  who,  of  course,  are 
appellants. 

2.  The  plaintiff,  who  becomes  an  adverse  party  be- 
cause he  will   or  may  be  affected  by  the  appeal. 

46  This  illustration  merely  assumes  that  service  of  the  bill 
or  statement  was  necessary  in  the  following  case:  Robertson 
Mortgage  Co.  v.  Thomas,  60  Wash.  514,  111  Pac.  795. 


§  58      BILLS   OF   EXCEPTIONS   AND   STATEMENTS   OP   FACTS.        116 

3.  The  purchaser,  who  becomes  an  adverse  party 
because  he  will  or  may  be  affected  by  the  appeal. 

4.  The  assignee  who,  it  was  adjudged,  is  entitled  to 
one  of  the  lots  involved. 

5.  The  nonappealing  codefendants. 

The  assignee  and  the  nonappealing  codefendants  are 
the  "any  other  parties  who  have  appeared  in  the 
cause,"  for  they  occupy  exactly  the  same  position  as 
the  appealing  codefendants.  They  may  receive  some 
benefit  from  the  appeal  of  the  appealing  codefendants 
"from  the  necessity  of  the  case,"  as  the  statute  puts 
it,  even  though  they  do  not  appeal  themselves;  but 
they  will  not  be  affected  by  it,  because  they  will  not  be 
adversely  ruled  against.  The  affirmance  of  the  order 
appealed  from  would  be  a  mere  affirmance  of  a  former 
ruling  which  is  already  adverse.  They  may  join  in 
the  appeal,  or  take  independent  appeals,  because  they 
have  appealable  interests,  and  are  similarly  affected 
by  the  ruling  of  the  lower  court.  But  they  will  not  be 
affected  by  the  appeal,  even  though  they  may  possibly 
be  benefited  by  it.  One  cannot  be  affected  unless  he 
can  be  adversely  ruled  against;  that  is,  unless  the  rul- 
ing of  the  supreme  court  will,  or  may  be,  more  unfavor- 
able than  the  ruling  of  the  lower  court. 

The  nonappealing  codefendants  and  the  assignee 
need,  therefore,  only  be  served  with  the  notice  of  the 
filing  of  the  bill  or  statement." 

Thus  again,  the  court,  in  the  statement  of  an  admira- 
ble holding,  says:  "This  action  was  commenced  by 
Henry  Sipes  against  the  Puget  Sound  Electric  Rail- 
way Company,  a  corporation,  and  W.  S.  Dimmock,  to 
recover  damages  for  personal  injuries.  The  defend- 

47  This  illustration  merely  assumes  that  service  of  the  bill 
or  statement  was  necessary  in  the  following  case :  Robertson 
Mortgage  Co.  v.  Thomas,  63  Wash.  316,  115  Pac.  312. 


117  PROPOSAL   OP   BILL   OR   STATEMENT.  §  58 

ants  appeared  by  the  same  attorneys,  but  answered 
separately.  On  a  jury  trial  a  verdict  was  returned, 
upon  which  judgment  was  entered  in  favor  of  the 
plaintiff  and  against  the  Puget  Sound  Electric  Rail- 
way Company,  for  $7,000  damages,  and  judgment  was 
also  entered  in  favor  of  the  defendant  W.  S.  Dimmock 
against  the  plaintiff,  Henry  Sipes.  The  defendant  the 
Puget  Sound  Electric  Railway  Company  has  ap- 
pealed." 

Here  the  plaintiff,  Henry  Sipes,  is  the  adverse  party, 
because  he  will  or  may  be  affected  by  the  appeal. 

Dimmock  is  not  an  adverse  party  because  he  cannot 
be  affected  by  the  appeal.  Nor  is  he  a  party  who  may 
join  in  or  take  an  independent  appeal  as  he  chooses, 
for  he  has  no  appealable  interest,  and,  of  course,  is  not 
similarly  affected  by  the  ruling  of  the  lower  court. 

The  appellant  is  not,  therefore,  required  to  serve 
anything  upon  Dimmock,  his  codefendant. 

If,  however,  Sipes  had  appealed,  Dimmock  would 
have  been  the  adverse  party  because  he  would  or  might 
have  been  affected  by  the  appeal.  It  would,  therefore, 
in  such  a  case,  be  necessary  to  serve  him  with  a  copy 
of  the  bill  or  statement.  The  Puget  Sound  Electric 
Railway  Company  would  not  be  affected  by  such  an 
appeal,  for  the  plaintiff  was  successful  as  against  this 
defendant,  and  the  appeal  could  only  affect  Dimmock. 
The  Puget  Sound  Electric  Railway  Company  would, 
however,  have  an  appealable  interest,  because  it  might 
also  appeal  as  against  Sipes;  but  it  could  not  join  in 
the  appeal  of  Sipes  because  it  would  not  be  similarly 
affected  by  the  ruling  of  the  lower  court. 

Not  being  affected  by  the  appeal  of  Sipes,  it  would 
not  be  entitled  to  service  of  a  copy  of  the  bill  or  state- 
ment; and  not  being  similarly  affected  by  the  ruling 
of  the  lower  court,  it  could  not  join  in  the  appeal  of 


§  58      BILLS   OF   EXCEPTIONS   AND   STATEMENTS    OP    FACTS.       118 

Sipes,  and  would  not  be  entitled  even  to  service  of  the 
notice  of  the  filing  of  the  bill  or  statement,  though  it 
would  have  an  appealable  interest.  The  appealable 
interest  and  the  right  to  join  in  an  appeal  must  coex- 
ist. The  ten  day  statutory  limitation  would  not,  there- 
fore, apply  to  it.48 

And  finally,  it  may  be  asked  why  it  should  be  neces- 
sary to  serve  a  notice  of  the  filing  of  the  bill  or  state- 
ment on  one  who  will  not  be  affected  by  an  appeal ;  and 
with  the  answer  to  this  the  author  will  conclude  His 
observations  regarding  the  persons  upon  whom  the  bill 
or  statement  must  be  either  actually  or  constructively 
served. 

The  answer  is  that  just  as  it  is  the  policy  of  the  stat- 
utes to  permit  his  joining  in  the  notice  of  appeal  with 
the  others  who  are  similarly  affected  by  the  ruling  of 
the  lower  court,  so  it  is  the  policy  of  the  statutes  to 
permit  his  joining  in  a  single  bill  or  statement  with 
the  others  who  are  similarly  affected  by  the  ruling  of 
the  lower  court,  and  discourage  a  resort  to  separate 
bills  or  statements  which  would  unnecessarily  encum- 
ber the  record;  and  in  order  that  he  may  have  an 
opportunity  of  enjoying  the  privilege,  the  statutes  re- 
quire that  he  shall  be  served  with  a  notice  of  the  filing 
of  the  bill  or  statement  with  the  express  end  in  view 
that  all  matters  which  are  material  merely  to  his  own 
particular  appeal  may,  if  he  so  desires,  be  embodied 
in  the  same  bill  or  statement  by  means  of  proposed 
amendments.  And  that  there  may  be  no  question  as 
to  this  right,  the  statutes  very  carefully  provide  that 
"  within  ten  days  after  such  service  any  other  party 
may  file  and  serve  on  the  proposing  party  any  amend-' 

48  This  illustration  merely  assumes  that  service  of  the  bill 
or  statement  was  necessary  in  the  following  case:  Sipes  v. 
Puget  Sound  Electric  Ry.  Co.,  50  Wash.  585,  97  Pac.  723. 


119  PROPOSAL   OP   BILL   OR   STATEMENT.  §  58 

ments  which  he  may  propose  to  the  bill  or  state- 
ment."49 

His  proposed  amendments  may  not,  of  course,  at  all 
times  be  material  to  the  particular  appeal  of  the  other 
parti/  who  proposed  the  bill  or  statement;  but  this  is 
merely  an  unanswerable  objection  to  their  embod- 
iment in  the  bill  or  statement  as  originally  proposed; 
but  they  will  become  material  upon  his  joining  in  the 
appeal,  a  privilege  which  the  statute  expressly  confers 
upon  him.  And,  moreover,  it  will  often  happen  that 
they  will  be  material  to  the  bill  or  statement  as  orig- 
inally proposed,  and  may  therefore  also  be  embodied 
therein  upon  his  joining  in  the  appeal,  for  the  same 
bill  or  statement  may  often  serve  both  parties,  in  which 
event  the  proposed  amendments  will,  of  course,  em- 
body only  such  matters  as  are  necessary  to  the  correc- 
tion of  the  bill  or  statement  as  originally  proposed. 
But  if  his  right  of  appeal  has  already  been  lost  when 
the  bill  or  statement  is  filed  and  served,  he  will  not  be 
entitled  to  any  notice  of  the  filing,  for  the  statutes  do 
not  require  a  useless  act. 

In  this  event,  therefore,  through  his  own  neglect  or 
fault,  he  is  no  longer  "any  other  party  who  has  ap- 
peared in  the  cause,"  for  two  of  the  elements  of  the 
definition  of  such  clause  are  now  wanting,  namely,  his 
appealable  interest  which  has  been  lost,  and  with  it  his 
right  to  join  in  the  appeal  by  reason  of  the  fact  that  he 
is  similarly  affected  by  the  ruling  of  the  lower  court, 
and  only  one  element  of  the  definition  remains,  namely, 
the  fact  that  he  appeared  in  the  cause,  which,  of  itself 
alone,  is  not  sufficient  to  entitle  him  to  the  service,  of 
anything.50 

49  Rem.  &  Bal.  Code,  §  389.     See  §  10,  supra. 
60  See,  also,  §  56,  supra. 


§  58      BILLS   OF  EXCEPTIONS  AND   STATEMENTS   OF   FACTS.       120 

And  that  this  right  to  join  in  the  same  bill  or  state- 
ment by  means  of  proposed  amendments  when  he  joins 
in  the  appeal  may  be  made  still  more  manifest,  the 
statutes  further  very  carefully  provide  that  when  the 
bill  or  statement  has  been  duly  certified  "all  matters 
and  proceedings  embodied  in  the  bill  of  exceptions  or 
statement  of  facts,  as  the  case  may  be,  shall  become 
and  thenceforth  remain  a  part  of  the  record  in  the 
cause,  for  all  the  purposes  thereof  and  of  any  appeal 
therein. ' ' 51 

Since  he  is  not  affected  in  the  least  by  the  appeal,  it 
is  not  necessary  to  serve  him  with  any  notice  of  an 
application  to  extend  the  time  for  the  filing  and  service 
of  the  proposed  bill  or  statement.  The  statutes  merely 
contemplate  that  when  the  bill  or  statement  has  been 
filed,  he  shall  be  notified  of  the  fact  in  order  that  he 
may  have  embodied  therein,  by  means  of  proposed 
amendments,  that  which  is  material  merely  to  his  own 
particular  appeal,  and  thus  avoid  the  necessity  of  re- 
sorting to  separate  bills  or  statements  which  would 
unnecessarily  encumber  the  record.  The  statutes, 
therefore,  with  this  same  end  in  view,  again  very  care- 
fully provide  that  the  time  for  the  filing  and  service 
of  the  bill  or  statement  may  be  enlarged  "by  stipu- 
lation of  the  parties,  or  for  good  cause  shown  and  on 
such  terms  as  may  be  just,  by  an  order  of  the  court  or 
judge  wherein  or  before  whom  the  cause  is  pending  or 
was  tried,  made  on  notice  to  the  adverse  party"  only.52 

The  statutes  thus  prove  by  their  own  internal  evi- 
dence that  he  is  not  affected  by  the  appeal;  and  not 
being  affected  by  the  appeal,  he  is  not  a  party  to  the 
appeal,  whether  he  joins  in  the 'notice  of  appeal,  or 

11  Rem.  &  Bal.  Code,  §  391.     See  §  12,  supra. 
52  Item.   &  Bal.   Code,  §  393.     See  §  14,  supra.    See,   also, 
§  61,  infra. 


121  PROPOSAL   OF   BILL   OR   STATEMENT.  §  59 

takes  an  independent  appeal ;  and  is  not,  therefore,  one 
of  the  "parties"  who  may  join  in  the  stipulation.  He 
is  not  concerned  in  the  least  with  any  extension  of  time 
for  the  filing  of  the  bill  or  statement ;  but  is  merely  con- 
cerned with  the  fact  of  the  filing. 

But  if  he  does  not  choose  to  accept  the  proffered 
privilege,  he  may  propose  separate  bills  or  statements 
of  his  own ;  for  the  statutes  also  contemplate  this  con- 
dition, and  accordingly  provide  that  the  "certifying 
of  a  bill  of  exceptions  or  statement  of  facts  shall  not 
prevent  the  subsequent  certifying  of  other  bills  of  ex- 
ceptions or  statements  of  facts,  or  both,  comprising 
other  matters  in  the  cause,  at  the  instance  of  the  same 
or  another  party."  53 

§  59.  (i)  Proof  of  Service  of  the  Proposed  Bill  or 
Statement. — The  proof  of  service  of  the  proposed  bill 
or  statement  is  not  regulated  by  statute  or  by  rules  of 
the  supreme  court,  and,  like  the  proof  of  the  filing  of 
the  proposed  bill  or  statement,  is  governed  by  an  es- 
tablished practice  which  is  sanctioned  by  judicial 
decisions. 

The  service  of  the  proposed  bill  or  statement  may  be 
proved : 

1.  By  the  written  admission  of  service  of  the  attor- 
ney of  the  party." 

The  written  admission  of  service  of  the  attorney  need 
not  show  the  place  of  service;  and  when  the  attorney 
admits  "due  service  and  receipt  of  a  copy  thereof," 
the  proof  of  service  is  sufficient." 

63  Bern.  &  Bal.  Code,  §  388.     See  §  9,  supra. 
"  Standard  Furniture  Co.  v.  Anderson,  38  Wash.  582,  80 
Pac.  813. 

"  Sackman  v.  Thomas,  24  Wash.  660,  64  Pac.  819. 


§  59      BILLS   OP  EXCEPTIONS   AND   STATEMENTS   OF   FACTS.        122 

The  written  admission  of  service  may  be  indorsed 
by  the  attorney  upon  the  original  bill  or  statement; 
and  an  indorsement  that  a  copy  of  the  bill  or  state- 
ment was  "received  and  service  of  same  accepted" 
is  sufficient." 

2.  By  the  written  admission  of  service  of  a  party 
when  he  has  appeared,  and  has  been  personally  served 
pursuant  to  the  rules  of  the  supreme  court;  for  the 
supreme  court  will,  after  appearance,  take  judicial 
notice  of  his  signature.57 

But  the  supreme  court  will  not,  however,  judicially 
notice  the  signature  of  a  party  who  has  not  appeared.68 

3.  Proof  of  service  of  the  proposed  bill  or  statement 
may  also  be  made  by  an  affidavit  of  service  of  the 
attorney  for  the  party.59 

An  affidavit  of  service  which  merely  recites  that  the 
paper  served  was  served  upon  respondent  "by  de- 
livering and  leaving  at  the  office  of  [his  attorneys] 
a  true  and  correct  copy  of  [the  paper  served]"  is 
insufficient.60 

4.  Proof  of  the  service  may,  no  doubt,  also  be  made 
by  an  affidavit  of  an  officer  making  the  service,  or  by 
an  affidavit  of  a  disinterested  person  making  the  ser- 
vice when  it  is  shown  by  the  affidavit  that  he  is  of  suffi- 

88  Turner  v.  Bailey,  12  Wash.  634,  42  Pac.  115. 

5T  See  Tischner  v.  Rutledge,  35  Wash.  285,  77  Pac.  388. 

58  Downs  v.  Board  of  Directors,  4  Wash.  309,  30  Pac.  147. 
See,  also,  Hill  v.  Gardner,  35  Wash.  529,  77  Pac.  808. 

68  Johnston  v.  Gerry,  34  Wash.  524,  76  Pac.  258,  77  Pac. 
503.  See,  also,  the  following  case  where  service  of  the  notice 
of  the  application  to  settle  and  certify  a  statement  of  facts 
was  proved  by  the  affidavit  of  the  attorney  for  the  party: 
Bowen  v.  Cain,  7  Wash.  469 ,  35  Pac.  369. 

M  Fairfield  v.  Binnian,  13  Wash.  1,  42  Pac.  632. 


123  PROPOSAL  OF   BILL   OR  STATEMENT.  §  60 

cient  age  and  intelligence  to  make  the  service  and 
proof. 

These  rules  are  applicable  to  the  proof  of  service  of 
all  other  papers  with  which  this  subject  is  concerned; 
and  they  will,  therefore,  render  any  further  considera- 
tion of  such  proof  unnecessary. 

J  60.  (j)  When  the  Proposed  Bill  or  Statement 
must  be  Filed  and  Served  in  the  Absence  of  Any  Ex- 
tension of  Time. — In  the  absence  of  any  extension  of 
time,  the  proposed  bill  or  statement  must  be  filed  and 
served  either  before  or  within  thirty  days  after  the 
time  begins  to  run  within  which  an  appeal  may  be 
taken  from  the  final  judgment  in  the  cause,  or  (as  the 
case  may  be)  from  an  order  with  a  view  to  an  appeal 
from  which  the  bill  or  statement  is  proposed;  and  if 
not  filed  and  served  within  that  time,  it  will  be  stricken 
from  the  cause  or  disregarded.81 

61  Baker  v.  Washington  Iron  Works  Co.,  11  Wash.  335,  39 
Pac.  642 ;  Tatum  v.  Boyd,  11  Wash.  712,  39  Pac.  639 ;  State  v. 
Landes,  26  Wash.  325,  67  Pac.  72;  Zindorf  Construction  Co. 
v.  Western  American  Co.,  27  Wash.  31,  67  Pac.  374;  Lamona 
v.  Cowley,  31  Wash.  297,  71  Pac.  1040;  Jones  v.  Herrick,  33 
Wash.  197,  74  Pac.  332 ;  State  v.  Yandell,  34  Wash.  409,  75 
Pac.  988;  McQuillan  v.  Seattle,  7  Wash.  331,  35  Pac.  68; 
Barkley  v.  Barton,  15  Wash.  33,  45  Pac.  654;  Humes  v.  Hill- 
man,  39  Wash.  107,  80  Pac.  1104 ;  State  v.  Aschenbrenner,  45 
Wash.  125,  87  Pac.  1118 ;  Driscoll  v.  Dufur,  45  Wash.  494,  88 
Pac.  929 ;  Brown  v.  Kinney,  48  Wash.  448,  93  Pac.  909 ;  Lind- 
say v.  Scott,  56  Wash.  206,  105  Pac.  462 ;  McDonald  v.  Van 
Houten,  59  Wash.  593,  110  Pac.  428;  Russell  v.  Mitchell,  61 
Wash.  178,  112  Pac.  250.  In  the  following  early  case,  which 
was  a  capital  case,  the  court  relaxed  the  rule :  State  v.  Blanck, 
10  Wash.  292,  38  Pac.  1012 ;  Rem.  &  Bal.  Code,  §  393.  See 
§  14,  supra.  In  further  support  of  the  rule,  see  the  following 
cases:  Wollin  v.  Smith,  27  Wash.  349,  67  Pac.  561 ;  McQueston 


§  61      BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OP    FACTS.        124 

§  61.  (k)  The  Methods  of  Extending  the  Time  for 
Filing  and  Serving  the  Proposed  Bill  or  Statement. — 
The  time  for  filing  and  serving  the  proposed  bill  or 
statement  may  be  extended  by  either  of  the  two  fol- 
lowing methods: 

1.  By  stipulation  of  the  parties;  or 

2.  By  an  order  of  the  court  or  judge  wherein  or 
before  whom  the  cause  is  pending  or  was  tried,  for 
good  cause  shown  and  on  such  terms  as  may  be  just, 
made  on  notice  to  the  adverse  party.62 

Where  the  time  has  been  extended  by  stipulation 
of  the  parties,  an  order  of  the  court  or  judge  is  un- 
necessary." 

The  stipulation  should  be  a  matter  of  record;  for 
the  supreme  court  will  not  allow  its  time  to  be  taken 
up  with  controversies  over  oral  agreements,  or  agree- 
ments to  enter  into  written  stipulations;  nor  will  it 
consider  affidavits  relating  to  oral  agreements.6* 

The  stipulation  may  be  evidenced  by  a  writing, 
signed  by  the  parties,  and  duly  filed.65 

And  it  may  also  be  shown  in  the  bill  or  statement 
itself.66 

But  in  the  absence  of  a  stipulation  of  the  parties, 
an  order  of  the  court  or  judge  wherein  or  before  whom 
the  cause  is  pending  or  was  tried  is  necessary;  and 

v.  Morrill,  12  Wash.  335,  41  Pae.  56;  Harpel  v.  Harpel,  31 
Wash.  295,  71  Pac.  1010;  Crowley  v.  McDonough,  30  Wash. 
57,  70  Pac.  261. 

62  Rem.  &  Bal.  Code,  §  393.     See  §  14,  supra. 

63  Dodds  v.  Gregson,  35  Wash.  402,  77  Pac.  791. 
84  Humes  v.  Hillman,  39  Wash.  107,  80  Pac.  1104. 

65  Humes  v.  Hillman,  39  Wash.  107,  80  Pac.  1104. 

66  See  Kane  v.  Kane,  35  Wash.  517,  77  Pac.  842 ;  State  ex 
rel.  Fetterley  v.  Griffin,  32  Wash.  67,  72  Pac.  1030. 


125  PROPOSAL   OF   BILL   OR   STATEMENT.  §  61 

such  an  order  cannot  be  made  without  notice  to  the 
adverse  party.87 

The  notice  should  specify  the  time  and  place  of  the 
hearing  of  the  application,  and  name  the  judge  to 
whom  the  application  will  be  made;  and  when  the 
notice  has  been  so  drawn,  if  the  matter  is  not  heard 
at  the  time  specified,  owing  to  no  fault  of  the  appel- 
lant, no  further  notice  need  be  given  if  the  application 
is  made  at  the  first  opportunity.*8 

There  are  no  statutory  provisions  or  rules  of  the 
supreme  court  prescribing  the  time  which  must  elapse 
between  the  service  of  the  notice  and  the  hearing  of 
the  application;  and  it  is  therefore  held  that  a  notice 
which  is  served  within  a  reasonable  time  before  the 
time  fixed  by  the  notice  for  the  hearing  of  the  applica- 
tion is  sufficient. 

Thus,  a  notice  that  an  application  would  be  made 
to  the  court  at  the  hour  of  3  o'clock  in  the  afternoon 
of  a  certain  day  for  an  order  extending  the  time  for 
filing  and  serving  the  proposed  bill  or  statement  has 
been  held  sufficient,  though  served  in  the  forenoon  of 
the  same  day.69 

It  is  also  required  that  a  good  cause  for  the  order 
should  be  shown;  but  it  is  held  that  the  granting  of 
an  extension  of  time  is  discretionary  with  the  lower 
court  or  judge,  and  that  its  action  in  granting  the  ex- 
tension will  not  be  disturbed.79 

47  Wollin  v.'  Smith,  27  Wash.  349,  67  Pac.  561 ;  McQueston 
v.  Morrill,  12  Wash.  335,  41  Pac.  56;  Harpel  v.  Harpel,  31 
Wash.  295,  71  Pac.  1010. 

68  State  ex  rel.  Bickford  v.  Benson,  21  Wash.  365,  58  Pae. 
217. 

69  Galler  v.  McMahon,  51  Wash.  473,  99  Pac.  309. 
w  Greely  v.  Newcomb,  21  Wash.  357,  58  Pac.  216. 


§  61      BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OP   FACTS.        126 

But  this  rule  only  applies  when  the  granting  of  the 
extension  is  based  upon  discretionary  matters;  and, 
therefore,  if  the  ruling  involves  the  application  of  rules 
of  law,  such  as  jurisdictional  questions,  the  ruling  will, 
of  course,  be  reviewed.71 

But  the  refusal  to  grant  an  extension  may  at  times 
work  a  positive  injustice,  and  therefore  is  a  discretion- 
ary matter  which  will  be  reviewed  and  reversed  when 
such  discretion  is  abused;  but  unless  the  discretion 
of  the  court  or  judge  in  refusing  the  extension  has 
been  plainly  abused,  its  action  will  not  be  disturbed.72 

But  this  rule  also  only  applies  where  the  refusal  to 
grant  an  extension  is  based  upon  discretionary  mat- 
ters; and  therefore,  if  the  ruling  involves  the  applica- 
tion of  rules  of  law,  such  as  jurisdictional  questions, 
the  ruling  will  be  reviewed  as  a  matter  of  course.73 

When,  in  the  opinion  of  a  party,  an  extension  of  time 
has  been  unjustly  refused,  certiorari  would,  no  doubt, 
be  a  proper  remedy,  and  mandamus  also ;  for  these 
proceedings  are,  by  the  express  provisions  of  the  stat- 
utes, deemed  steps  and  proceedings  in  the  cause  itself, 
resting  upon  the  jurisdiction  originally  acquired  by 
the  court  in  the  cause,  and  an  appeal  would  be  clearly 
inadequate,  as  a  general  rule.74 

That  an  appeal  is  inadequate  is  evident  from  the 
following  case  wherein  it  was  necessarily  held  that 

71  Driscoll  v.  Dufur,  45  Wash.  494,  88  Pac.  929 ;  Wallace  v. 
Oceanic  Packing  Co.,  25  Wash.  143,  64  Pac.  938. 

72  Fulton  v.  Methow  Trading  Co.,  45  Wash.  136,  88  Pac. 
117. 

78  State  ex  rel.  Bickford  v.  Benson,  21  Wash.  365,  58  Pac. 
217. 

*  See  the  following  case  where  mandamus  was  resorted  to : 
State  ex  rel.  Bickford  v.  Benson,  21  Wash.  365,  58  Pac.  217 ; 
Bern.  &  Bal.  Code,  §  393.  See  §  14,  supra. 


127  PROPOSAL   OP   BILL   OB   STATEMENT.  §  61 

the  ruling  of  the  lower  court  or  judge  in  refusing  an 
extension  of  time  will  not  be  reviewed  where  it  ap- 
pears that  the  longest  period  allowed  by  the  statute 
in  any  event  for  the  filing  and  service  of  the  proposed 
bill  or  statement  has  already  expired,  and  that  any 
consideration  of  the  ruling  would,  therefore,  be  use- 
less.76 

The  time  for  filing  and  serving  the  proposed  bill 
or  statement  may  be  extended  once  or  more;  but  the 
order  extending  the  time  must  be  entered  either  before 
or  after  the  expiration  of  thirty  days  after  the  time 
begins  to  run  within  which  an  appeal  may  be  taken 
from  the  final  judgment  in  the  cause,. or  (as  the  case 
may  be)  from  an  order  with  a  view  to  an  appeal  from 
which  the  bill  or  statement  is  proposed,  but  if  entered 
after,  it  must  be  entered  before  the  expiration  of  ninety 
days  after  the  time  begins  to  run  within  which  an 
appeal  may  be  taken  from  the  final  judgment  in  the- 
cause,  or  (as  the  case  may  be)  from  an  order  with  a 
view  to  an  appeal  from  which  the  bill  or  statement  is 
proposed;  for  the  order  cannot,  in  any  event,  extend 
the  time  for  the  filing  and  service  of  the  proposed  bill 
or  statement  beyond  a  period  of  ninety  days  after  the 
time  begins  to  run  within  which  an  appeal  may  be 
taken  from  the  final  judgment  in  the  cause,  or  (as 
the  case  may  be)  from  an  order  with  a  view  to  an  ap- 
peal from  which  the  bill  or  statement  is  proposed.76 

In  the  absence  of  a  stipulation,  the  order  is  the  only 
evidence  of  the  extension;  and  as  the  statutory  pro- 
visions are  mandatory,  they  cannot  be  evaded  even  by 
a  nunc  pro  tune  order,  although  the  bill  or  statement 

75  Hotel  Company  v.  Merchants'  Ice  &  Fuel  Co.,  41  Wash. 
620,  84  Pac.  402. 
78  Rem.  &  Bal.  Code,  §  393.     See  §  14,  supra. 


§  61      BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OF   FACTS.        128 

has  been  filed  and  served  within  the  time  allowed  by 
the  nunc  pro  tune  order  and  by  the  statutes." 

The  application  for  the  extension  should  also  be 
filed  within  such  ninety  day  period.78 

When,  therefore,  the  application  is  filed  within  such 
ninety  day  period,  and  the  order  extending  the  time 
for  filing  and  serving  the  proposed  bill  or  statement 
is  entered  within  such  ninety  day  period,  and  the  pro- 
posed bill  or  statement  is  filed  and  served  within  the 
time  allowed  by  the  order  and  by  the  statutes,  the 
extension  is  proper.79 

Since  the  order  extending  the  time  for  filing  and 
serving  the  proposed  bill  or  statement  should  be  en- 
tered within  such  ninety  day  period,  it  logically  fol- 
lows that  if  the  time  is  extended  by  stipulation  of 
the  parties,  such  stipulation  should  be  reduced  to  writ- 
ing and  signed  by  the  parties  before  the  expiration  of 
such  ninety  day  period.  The  careful  practitioner  will 
also  file  the  written  stipulation  before  the  expiration 
of  the  ninety  day  period,  if  possible ;  but  it  would  seem 

J -that  this  is  not  necessary,  and  that  the  stipulation 

would  be  effective  if  filed  in  time  to  be  made  a  part 
of  the  record  on  appeal. 

And  finally,  the  statute  provides  that  the  notice  of 
the  application  for  the  extension  shall  be  served  only 
upon  the  adverse  party.  The  phrase  ' '  adverse  party ' ' 
means  every  party  whose  interest  in  the  subject  matter 
of  the  appeal  is  adverse  to  or  will  be  affected  by  the 
reversal  or  modification  of  the  judgment  or  order  from 
which  the  appeal  has  been  taken,  irrespective  of  the 

"  Crowley  v.  McDonough,  30  Wash.  57,  70  Pac.  261. 

78  Crowley  v.  McDonough,  30  Wash.  57,  70  Pac.  261. 

79  O'Neile  v.  Ternes,  32  Wash.  528,  73  Pac.  692;  Delaski  v. 
Northwestern  Improvement  Co.,  61  Wash.  255,  112  Pac.  341. 
See,  also,  State  v.  Pearson,  37  Wash.  405,  79  Pac.  985. 


129  PROPOSAL   OP   BILL   OR   STATEMENT.  §  62 

question  whether  he  appears  upon  the  face  of  the 
record  in  the  attitude  of  plaintiff  or  defendant,  or  in- 
tervenor.80 

The  notice  of  the  application  for  the  extension  need 
not,  therefore,  be  served  upon  "any  other  party  who 
has  appeared  in  the  cause."  This  clause  may  be  de- 
fined to  be  any  party  who  has  appeared  in  the  cause, 
has  an  appealable  interest  therein,  and  who  may  join 
in  an  appeal  by  reason  of  the  fact  that  he  is  similarly 
affected  by  the  ruling  of  the  lower  court. 81 

In  this  connection  the  reader's  attention  is  directed 
to  sections  56  and  58  of  this  work. 

The  rules  governing  the  methods  of  service  and  the 
proof  of  service  of  the  proposed  bill  or  statement  are 
applicable  to  the  methods  of  service  and  the  proof  of 
service  of  all  papers  mentioned  in  this  section;  and 
therefore  a  reference  to  the  sections  wherein  the 
methods  of  service  and  the  proof  of  service  of  the  pro- 
posed bill  or  statement  are  considered  will  be  suffi- 
cient.82 

§  62.  (1)  The  Time  Within  Which  the  Proposed 
Bill  or  Statement  must  be  Filed  and  Served  When  an 
Extension  has  Been  Granted. — When  the  time  for  the 
filing  and  service  has  been  extended,  whether  by  stipu- 
lation or  by  order  of  the  court  or  judge,  the  proposed 
bill  or  statement  must,  of  course,  be  filed  and  served 
within  the  time  limited  by  the  stipulation  or  order. 

The  time  for  the  filing  and  service  of  the  proposed 
bill  or  statement  cannot,  however,  in  any  case,  be  ex- 
tended beyond  the  period  of  ninety  days  after  the  time 


80  See  §  55,  supra. 
11  See  §  56,  supra. 
82  See  §§57,  59,  supra. 


§  62      BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OP   PACTS.        130 

begins  to  run  within  which  an  appeal  may  be  taken 
from  the  final  judgment  in  the  cause,  or  (as  the  case 
may  be)  from  an  order  with  a  view  to  an  appeal  from 
which  the  bill  or  statement  is  proposed;  and  if  so  ex- 
tended, and  the  proposed  bill  or  statement  is  not  filed 
and  served  within  the  time  so  limited  by  the  statute,  it 
will  be  stricken  from  the  cause  or  disregarded.83 

It  therefore  follows  that  the  lower  court  or  judge 
will  not  be  compelled  to  extend  the  time  beyond  the 
statutory  limit.8* 

It  is  accordingly  held  that  where  an  appeal  is  taken 
from  two  or  more  appealable  orders,  and  the  time  for 
filing  and  serving  a  proposed  bill  or  statement  is 
properly  extended,  the  statutory  provision  relating  to 
the  time  of  the  filing  and  service  of  the  bill  or  state- 
ment is  applied  to  the  date  of  the  entry  of  each  of  the 
orders;  and  if  the  proposed  bill  or  statement  is  not 
filed  in  time,  when  the  statutory  limit  is  applied  to  the 
date  of  entry  of  any  particular  order,  the  lower  court 
will  not  be  compelled  to  certify  to  any  matters  relating 
to  such  order,  for  the  very  plain  reason  that  the  pro- 
posed bill  or  statement  is  not  filed  in  time,  in  so  far 
as  the  particular  order  and  the  matters  relating  thereto 
are  concerned,  and  would,  if  it  were  not  filed  in  time 
with  reference  to  other  orders,  be  stricken  from  the 
cause  or  disregarded. 

The  statutes  must  be  followed  with  respect  to  each 
order  appealed  from  even  if  separate  bills  or  state- 

83  In  the  following  cases  the  time  was  extended  beyond  the 
statutory  limit  by  order  of  the  court;  Loos  v.  Rondema,  10 
Wash.  164,  38  Pax;.  1012 ;  State  v.  Seaton,  26  Wash.  305,  66 
Pac.  397.     In  the  following  cases  the  time  was  extended  be- 
yond the  statutory  limit  by  stipulation  of  the  parties:  Thomas 
v.  Lincoln  County,  32  Wash.  317,  73  Pac.  367 ;  Owen  v.  Casey, 
48  Wash.  673,  94  Pac.  473. 

84  State  v.  White,  40  Wash.  428,  82  Pac.  743. 


131  PROPOSAL   OF   BILL   OR   STATEMENT.  §  63 

ments  are  necessary  in  order  to  comply  with  the  stat- 
utes. A  bill  or  statement  cannot  cover  matters 
relating  to  an  appealable  order  when  the  time  for  filing 
and  serving  a  bill  or  statement  relating  to  such  matters 
and  such  order  has  expired.  The  statutes  must  be  ob- 
served and  followed,  whether  there  be  but  one  proposed 
bill  or  statement,  or  several  proposed  bills  or  state- 
ments.86 

§  63.  (m)  The  Place  Where  the  Application  for 
an  Extension  of  Time  may  be  Heard. — The  application 
for  the  extension  may,  with  consent  of  the  parties,  be 
heard  in  any  county  within  the  district  of  the  judge 
before  whom  the  cause  is  pending ;  but  without  consent 
of  the  parties  to  the  hearing  elsewhere,  the  application 
must  be  heard  within  the  particular  county  wherein 
the  cause  or  proceeding  is  pending.88 

Thus,  where  the  application  for  an  extension  was 
heard  outside  of  the  county  wherein  the  cause  or,  pro- 
ceeding was  pending  without  consent  of  the  parties,  it 
was  held,  in  accordance  with  the  statutory  provisions, 
that  the  hearing  was  unauthorized,  and  that  the  order 
extending  the  time  was,  therefore,  invalid.87 

The  consent  may  be  evidenced  either  by  the  stipula- 
tion of  the  parties  reduced  to  writing  and  duly  filed; 
or  such  consent  may,  no  doubt,  be  shown  in  the  pro- 
posed bill  or  statement. 

These  rules  are  applicable  to  the  place  of  all  hear- 
ings in  the  superior  courts.88 

85  State  ex  rel.  Dutch  Miller  Mining  &  Smelting  Co.  v.  Su- 
perior Court,  30  Wash.  43,  70  Pac.  102. 

86  Bern.  &  Bal.  Code,  §§  41,  42.     See  §§  32,  33,  supra. 

87  Driseoll  v.  Dufur,  45  Wash.  494,  88  Pac.  929. 

88  See  Prospectors'  Development  Co.  v.  Brook,  31  Wash. 
187,  71  Pac.  774;  Shaw  v.  Spencer,  57  Wash.  587,  107  Pac. 


§  64      BILLS  OP  EXCEPTIONS  AND   STATEMENTS   OF  FACTS.       132 

But  the  application  for  the  extension  cannot  be  heard 
outside  of  the  judicial  district  wherein  the  cause  is 
pending,  even  with  the  consent  of  the  parties.  The 
statute  very  clearly  limits  the  territory  within  which 
the  hearing  may  be  held,  even  with  consent  of  the 
parties,  to  the  judicial  district  wherein  the  cause  is 
pending.80 

§  64.  (n)  The  Judge  Who  may  Make  the  Order 
Extending  the  Time,  and  to  Whom,  Therefore,  the 
Application  may  be  Made. — Any  judge  of  the  court 
wherein  the  cause  is  pending,  or  any  nonresident  judge, 
or  judge  pro  tempore,  before  whom  the  cause  was 
tried  may  make  the  order  extending  the  time  for  the 
filing  and  service  of  the  proposed  bill  or  statement; 
and  any  such  judge  is,  therefore,  the  judge  to  whom 
the  application  may  be  made.90 

The  statute  provides  that  the  order  extending  the 
time  for  filing  and  serving  the  proposed  bill  or  state- 
ment may  be  made  by  ' '  the  court  or  judge  wherein  or 
before  whom  the  cause  is  pending  or  was  tried." 

The  constitution  provides  that ' '  the  judge  of  any  su- 
perior court  may  hold  a  superior  court  in  any  county  at 
the  request  of  the  judge  of  the  superior  court  thereof, 
and  upon  the  request  of  the  governor  it  shall  be  his 
duty  to  do  so.  A  case  in  the  superior  court  may  be 
tried  by  a  judge  pro  tempore,  who  must  be  a  member 
of  the  bar,  agreed  upon  in  writing  by  the  parties  liti- 
gant or  their  attorneys  of  record,  approved  by  the 
court,  and  sworn  to  try  the  case." 

383.  See,  also,  State  ex  rel.  Clark  v.  Neal,  19  Wash.  642,  54 
Pac.  31. 

89  See  Prospectors'  Development  Co.  v.  Brook,  31  Wash. 
187,  71  Pac.  774. 

•°  Rem.  &  Bal.  Code,  §  393 ;  Const.,  art.  4,  §  7. 


133  PROPOSAL  OF   BILL   OR   STATEMENT.  §  64 

A  cause  is  always  pending  in  the  court  of  the  res- 
ident judge  until  it  has  been  finally  determined  in  his 
court,  and  until  all  steps  necessary  to  the  completion 
of  the  proposed  bill  or  statement  have  been  taken; 
for  by  express  provision  of  the  statutes  all  steps  and 
proceedings  relating  to  the  proposed  bill  or  statement 
are  deemed  steps  and  proceedings  in  the  cause  itself, 
resting  upon  the  jurisdiction  originally  acquired  by  the 
court  in  the  cause.  It  follows,  therefore,  that  the  res- 
ident judge  may  make  the  order  extending  the  time 
for  the  filing  and  service  of  the  proposed  bill  or  state- 
ment, even  though  the  cause  was  tried  by  a  nonres- 
ident judge.  In  such  a  case  the  time  may  be  ex- 
tended either  by  the  resident  or  nonresident  judge.91 

Where  there  are  two  or  more  judges  for  a  particular 
county,  each  of  the  judges  has  the  same  powers,  of 
course ;  and  any  one  of  the  judges  may  extend  the  time 
for  the  filing  and  service  of  the  proposed  bill  or  state- 
ment in  a  cause  pending  in  the  court  of  such  county, 
whether  he  actually  tried  the  cause  or  not.92 

There  are  no  decisions  of  the  supreme  court  support- 
ing the  author's  statement  that  a  judge  pro  tempore 
before  whom  a  cause  has  been  tried  may  extend  the 
time  for  the  filing  and  service  of  the  proposed  bill  or 
statement;  but  it  is  clear  enough  that  none  are  neces- 
sary. The  legislature,  it  is  true,  cannot  delegate 
judicial  powers.93 

But  while  the  legislature  cannot  delegate  judicial 
powers,  the  constitution  can;  and  the  judicial  powers 
of  a  judge  pro  tempore  are  constitutional. 94 

91  State  ex  rel.  Bickford  v.  Benson,  21  Wash.  365,  58  Pac. 
217. 

92  Wallace  v.  Oceanic  Packing  Co.,  25  Wash.  143,  64  Pac. 
938. 

98  Hallam  v.  Tillinghast,  19  Wash.  20,  52  Pac.  329. 
94  Const.,  art.  4,  §  7. 


§  65      BILLS   OP   BXCEPTIONS   AND  STATEMENTS   OF   PACTS.        134 

§  65.  (o)  The  Place  Where  the  Order  Extend- 
ing the  Time  may  be  Made. — The  order  extending  the 
time  for  the  filing  and  service  of  the  proposed  bill  or 
statement  may  be  made,  that  is,  formally  signed,  by 
the  judge  who  heard  the  application  for  the  extension, 
in  any  county  within  the  judicial  district  wherein  the 
cause  is  pending;  and  if  the  judge  who  heard  the  ap- 
plication is  a  visiting  judge,  the  order  extending  the 
time  may  be  made,  that  is,  formally  signed,  by  him 
in  any  county  in  the  state.  The  order  when  made 
should  be  immediately  filed  with  the  clerk  of  the 
proper  county." 

This  rule  relating  to  the  place  where  the  order  ex- 
tending the  time  for  the  filing  and  service  of  the  pro- 
posed bill  or  statement  may  be  made  is  applicable  to 
the  place  where  all  orders  relating  to  the  proposed  bill 
or  statement  may  be  made. 

Thus,  a  visiting  judge  who  has  tried  a  cause  may 
certify  the  proposed  bill  or  statement  while  in  his  own 
county." 

The  rule  governing  the  place  where  the  application 
for  the  extension  may  be  heard  is  quite  different  from 
the  rule  governing  the  place  where  the  order  may  be 
made,  that  is,  formally  signed. 

An  order  which  is  perfectly  valid  in  so  far  as  the 
place  where  it  may  be  made  or  signed  is  concerned, 
may  still  be  wholly  invalid  by  reason  of  the  fact  that 
the  application  for  the  extension  was  heard  in  the 
wrong  place. 

•»  Rem.  &  Bal.  Code,  §§  41,  42.  See  §§  32,  33,  supra.  See, 
also,  Const.,  art.  4,  §  7. 

••  Downs  Farmers'  Warehouse  Assn.  v.  Pioneer  Mutual 
Ins.  Assn.,  41  Wash.  372,  83  Pac.  423.  See,  also,  Matheson  v. 
Ward,  24  Wash.  407,  85  Am.  St.  Rep.  955,  64  Pac.  520. 


135  PROPOSAL   OF   BILL   OR   STATEMENT.  §  66 

With  this  difference  between  these  rules  in  mind, 
the  following  cases  which  seem  at  first  glance  to  be 
opposed  to  the  rule  here  given,  will  be  found  to  sup- 
port it.97 

But  the  resident  judge  has  no  authority  to  make  the 
order  outside  of  the  judicial  district  wherein  the  cause 
is  pending.98 

§  66.  (p)  When  the  Time  Within  Which  the  Pro- 
posed Bill  or  Statement  must  be  Filed  and  Served 
Begins  to  Run. — This  subject  will  be  considered  in  a 
threefold  view,  namely: 

First,  with  reference  to  the  final  judgment. 

Second,  with  reference  to  an  appealable  order  other 
than  the  final  judgment. 

Third,  with  reference  to  the  time  when  the  final 
judgment  or  an  appealable  order  is  deemed  to  be  en- 
tered. 

And  first,  with  reference  to  the  final  judgment: 

The  beginning  of  the  time  within  which  an  appeal 
must  be  taken  from  a  final  judgment  and,  therefore, 
the  beginning  of  the  time  within  which  a  proposed 
bill  or  statement  must  be  filed  and  served  on  appeal 
from  a  final  judgment,  is  fixed  by  the  statutes  at  the 
date  of  the  entry  of  the  final  judgment.99 

•7  Driscoll  v.  Dufur,  45  Wash.  494,  88  Pac.  929;  Downs 
Farmers'  Warehouse  Assn.  v.  Pioneer  Mutual  Ins.  Assn.,  41 
Wash.  372,  83  Pac.  423;  Prospectors'  Development  Co.  v. 
Brook,  31  Wash.  187,  71  Pac.  774.  See,  also,  Matheson  v. 
Ward,  24  Wash.  407,  85  Am.  St.  Rep.  955,  64  Pac.  520 ;  State 
ex  rel.  Clark  v.  Neal,  19  Wash.  642,  54  Pac.  31. 

98  See  Prospectors'  Development  Co.  v.  Brook,  31  Wash. 
187,  71  Pac.  774. 

99  See  Rem.  &  Bal.  Code,  §  1718.     See  §  20,  supra;  Lindsay 
v.  Scott,  56  Wash.  206,  105  Pac.  462;  Wollin  v.  Smith.  27 


§  66      BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OP   FACTS.       136 

Second,  with  reference  to  an  appealable  order  other 
than  the  final  judgment: 

In  criminal  causes  there  are  no  appealable  orders 
other  than  the  final  judgment;  but  in  civil  actions  and 
proceedings  the  beginning  of  the  time  within  which  an 
appeal  must  be  taken  from  an  appealable  order  other 
than  the  final  judgment,  and,  therefore,  the  beginning 
of  the  time  within  which  a  proposed  bill  or  statement 
must  be  filed  and  served  on  appeal  from  an  appealable 
order  is  fixed  by  the  statutes  at  the  date  of  the  entry 
of  the  appealable  order  if  made  at  the  time  of  the  hear- 
ing, and  in  all  other  cases  at  the  time  of  the  service 
of  a  copy  of  such  order  with  written  notice  of  the 
entry  thereof  upon  the  party  appealing  or  his  at- 
torney.100 

If  made  at  the  time  of  the  hearing,  the  time  begins 
to  run  at  the  date  of  the  entry  of  the  appealable 
order.101 

//  not  made  at  the  time  of  the  hearing,  the  time 
does  not  begin  to  run  until  the  service  of  a  copy  of 
such  order  with  written  notice  of  the  entry  thereof 
upon  the  party  appealing  or  his  attorney.102 

One  may,  of  course,  under  the  statute,  as  has  already 
been  seen,  file  and  serve  the  proposed  bill  or  statement 
before  the  time  begins  to  run  in  either  of  the  above 
cases;  but  he  is  not  required  to  do  so. 

Under  former  statutes,  also,  he  had  the  right  to 
wait  until  after  the  time  began  to  run.103 

Wash.  349,  67  Pac.  561 ;  Loos  v.  Rondema,  10  Wash.  164,  38 
Pac.  1012. 

100  See  Rem.  &  Bal.  Code,  §  1718.     See  §  20,  supra. 

101  Braely  v.  Marks,  13  Wash.  224,  43  Pac.  27 ;  Donison  v. 
Spokane,  27  Wash.  317,  67  Pac.  561. 

102  Debenture  Corporation  v.  Warren,  9  Wash.  312,  37  Pac. 
451 ;  Otis  Brothers  &  Co.  v.  Nash,  26  Wash.  39,  66  Pac.  111. 

103  Bowen  v.  Hughes,  5  Wash.  442,  32  Pac.  98. 


137  PROPOSAL  OP  BILL  OR  STATEMENT.  §  66 

Third,  with  reference  to  the  time  when  the  final  judg- 
ment or  an  appealable  order  is  deemed  to  be  entered: 

It  has  long  been  settled  by  the  authorities  that  an 
appealable  order  or  the  final  judgment  in  a  cause  is 
entered  when  it  is  filed™* 

In  an  early  case  which  was  decided  under  former 
statutes  it  was  held  that  in  an  action  at  law  tried  by 
the  court  no  judgment  can  be  rendered  until  findings 
of  fact  and  conclusions  of  law  had  been  filed ;  and  that 
although,  the  judgment  had  been  filed  before  the  find- 
ings and  conclusions,  it  did  not  take  effect  until  the 
findings  and  conclusions  had  been  filed;  and  that, 
therefore,  the  time  for  the  filing  and  service  of  the  pro- 
posed bill  or  statement  did  not  begin  to  run  until  the 
date  of  the  filing  of  the  findings  and  conclusions.105 

As  between  a  formal  order  and  a  clerk's  entry,  the 
formal  order  will  control.  Thus,  where  the  clerk's 
brief  entry  on  the  minutes,  entered  on  the  day  that 
the  court  orally  announced  its  decision,  is  inconsistent 
with  the  formal  order  of  the  court  signed  and  filed  a 
few  days  later,  the  latter  controls,  and  must  be  con- 
sidered the  evidence  of  the  real  and  final  act  of  the 
court  on  the  subject.108 

But  a  journal  entry  is  held  to  be  controlling  over  a 
later  formal  order  when  the  avowed  object  of  the 

104  Quareles  v.  Seattle,  26  Wash.  226,  66  Pac.  389 ;  National 
Christian  Assn.  v.  Simpson,  21  Wash.  16,  56  Pac.  844;  State 
ex  rel.  Brown  v.  Brown,  31  Wash.  397,  62  L.  R.  A.  974,  72  Pac. 
86 ;  Warner  v.  Miner,  41  Wash.  98,  82  Pac.  1033 ;  McGlauflin 
v.  Merriam,  7  Wash.  Ill,  34  Pac.  561. 

108  Sadler  v.  Niesz,  5  Wash.  182,  31  Pac.  630,  1030. 

106  State  ex  rel.  Jensen  v.  Bell,  34  Wash.  185,  75  Pac.  641 ; 
Gould  v.  Austin,  52  Wash.  547,  100  Pac.  1029.  See,  also,  Mc- 
Guire  v.  Bryant  Lumber  &  Shingle  Mill  Co.,  53  Wash.  425,  102 
Pac.  327;  Michel  v.  White,  64  Wash.  341,  116  Pac.  860. 


§  67      BILLS  OP  EXCEPTIONS  AND   STATEMENTS   OP  FACTS.       138 

later  formal  order  is  to  correct  errors  of  law  in  the 
former  ruling.  The  court  has  no  inherent  power  to 
correct  errors  of  law  in  an  order  once  entered  of  its 
own  motion.  Errors  of  law  must  be  corrected  on  ap- 
peal.107 

§  67.  (q)  How  the  Beginning  of  Such  Time  may 
be  Postponed. — The  instances  in  which  the  beginning 
of  the  time  within  which  the  proposed  bill  or  statement 
must  be  filed  and  served  may  be  postponed  are  five  in 
number,  one  of  which  is  a  statutory  instance,  while  the 
remainder  owe  their  existence  to  judicial  decisions. 

And  first,  by  virtue  of  a  statutory  provision,  the 
beginning  of  the  time  within  which  the  proposed  bill 
or  statement  must  be  filed  and  served  may  be  postponed 
by  the  death  of  a  party  after  the  rendition  of  a  final 
judgment.  Thus,  the  statute  provides: 

"The  death  of  a  party  after  the  rendition  of  a  final 
judgment  in  the  superior  court  shall  not  affect  any 
appeal  taken,  or  the  right  to  take  an  appeal,  but  the 
proper  representatives  in  personalty  or  realty  of  the 
deceased  party,  according  to  the  nature  of  the  case, 
may  voluntarily  come  in  and  be  admitted  parties  to 
the  cause,  or  may  be  made  parties  at  the  instance  of 
another  party,  as  may  be  proper,  as  in  case  of  death 
of  a  party  pending  an  action  in  the  superior  court, 
and  thereupon  the  appeal  may  proceed  or  be  taken  as 
in  other  cases;  and  the  time  necessary  to  enable  such 
representatives  to  be  admitted  or  brought  in  as  parties 
shall  not  be  computed  as  part  of  the  time  in  this  act 
limited  for  taking  an  appeal,  or  for  taking  any  step 
in  the  progress  thereof. ' ' 108 

107  Coyle  v.  Seattle  Electric  Co.,  31  Wash.  181,  71  Pac.  733. 

108  Rem.  &  Bal.  Code,  §  1743. 

By  virtue  of  a  statutory  provision  enacted  prior  to  the 
present  general  statutes  governing  the  subject  of  appeals,  the 


139  PROPOSAL   OF   BILL   OR   STATEMENT.  §  67 

Second,  by  an  application  seasonably  made  to  set 
aside  an  order  or  the  final  judgment  upon  the  ground 
that  it  has  been  irregularly  entered. 

The  time  for  an  appeal  from  an  order  or  judgment 
which  is  claimed  to  have  been  irregularly  entered  will 
not  begin  to  run  pending  the  determination  by  the 
trial  court  of  a  motion  for  its  vacation ;  and  hence,  the 
beginning  of  the  period  within  which  the  proposed 
bill  or  statement  must  be  filed  and  served  will  be  post- 
beginning  of  the  time  within  which  the  proposed  bill  or  state- 
ment must  be  filed  and  served  may  be  postponed  by  a  pro- 
ceeding to  establish  and  restore  the  record  of  a  lost  or 
destroyed  judgment  or  order  concerning  which  either  party 
has  a  right  to  an  appellate  proceeding.  This  statutory  pro- 
vision reads  as  follows :  ' '  Whenever  a  lost  or  destroyed  judg- 
ment or  order  is  one  to  which  either  party  has  a  right  to  a 
proceeding  in  error  or  of  appeal,  the  time  intervening  between 
the  filing  of  the  application  mentioned  in  section  1272  and 
the  final  order  of  the  court  thereon  shall  be  excluded  in  com- 
puting the  time  within  which  such  proceeding  or  appeal  may 
be  taken  as  provided  by  law":  Rem.  &  Bal.  Code,  §  1274. 
See,  also,  Rem.  &  Bal.  Code,  §§  1270-1273. 

The  present  general  statutes  relating  to  appeals  are,  how- 
ever, exclusive,  and  supersede  all  other  methods  heretofore 
provided,  as  is  manifest  from  the  following  provision: 

"The  mode  provided  by  this  title  for  appealing  cases  to  the 
supreme  court,  and  for  securing  a  revision  of  the  same  therein, 
shall  be  exclusive  and  shall  supersede  all  other  methods  here- 
tofore provided.  But  no  rights  acquired  under  statutes 
which  are  abrogated  by  this  title  shall  be  lost  by  reason  of  the 
passage  of  this  title,  and  all  appeals  pending  when  this  title 
takes  effect  may  be  prosecuted  to  their  determination  as  if 
this  title  had  not  been  passed":  Rem.  &  Bal.  Code,  §  1754. 

In  view  of  the  later  statutes  it  is  apprehended  that  this 
prior  statutory  provision  has  been  repealed.  The  court,  how- 
ever, may  view  the  matter  differently;  and  therefore  the 
reader's  attention  is  directed  to  it. 


§  67      BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OP   PACTS.        140 

poned  until  such  motion  shall  have  been  disposed  of; 
that  is,  until  the  entry  of  the  order  disposing  of  the 
motion  or  application.111 

When,  therefore,  an  .appeal  has  been  taken  from  only 
a  portion  of  a  judgment  which  is  in  respondent 's  favor, 
and  the  portion  appealed  from  is  not  affected  by  re- 
spondent's motion  to  vacate  for  irregularity,  the  rule 
does  not  apply  to  the  portion  appealed  from.  It  ap- 
plies only  to  that  portion  of  the  judgment  which  is 
attacked  by  the  motion  and  which  is  in  appellant's 
favor.118 

Third,  by  a  motion  for  a  new  trial  which  has  been 
seasonably  made. 

The  time  for  taking  an  appeal  begins  to  run  from 
the  date  of  the  entry  of  an  order  disposing  of  a  motion 
for  a  new  trial,  when  the  motion  is  seasonably  made. 
The  entry  of  the  judgment  becomes  final  on  that  date ; 
and,  therefore,  the  beginning  of  the  period  within 
which  the  proposed  bill  or  statement  must  be  filed  and 
served  will  be  postponed  until  such  motion  shall  have 
been  disposed  of;  that  is,  until  the  entry  of  the  order 
disposing  of  the  motion.113 

111  State  ex  rel,  Hennessy  v.  Huston,  32  Wash.  154,  72  Pac. 
1015 ;  Hennessy  v.  Tacoma  Smelting  &  Refining  Co.,  33  Wash. 
423,  74  Pac.  584. 

112  See  Lauridsen  v.  Lewis,  47  Wash.  594,  92  Pac.  440. 

113  State  ex  rel.  Payson  v.  Chapman,  35  Wash.  64,  76  Pac. 
525 ;  Rice  Fisheries  Co.  v.  Pacific  Realty  Co.,  35  Wash.  535,  77 
Pac.  839.     See,  also,  Owen  v.  Casey,  48  Wash.  673,  94  Pac. 
473.     See,  also,  Prospectors'  Development  Co.  v.  Brook,  32 
Wash.  315,  73  Pac.  376 ;  Kubillus  v.  Ewert,  40  Wash.  38,  82 
Pac.  147 ;  Wittler-Corbin  Machinery  Co.  v.  Martin,  47  Wash. 
123,  91  Pac.  629 ;  Chilcott  v.  Globe  Navigation  Co.,  49  Wash. 
302,  95  Pac.  264;  Jemo  v.  Tourist  Hotel  Co.,  55  Wash.  595,  19 
Ann.  Cas.  1199,  104  Pac.  820;  O'Brien  v.  American  Casualty 


141  PROPOSAL   OP   BILL   OR   STATEMENT.  §  67 

Fourth,  by  the  reversal  of  a  favorable  ruling  which 
prevented  an  appeal  from  an  unfavorable  one. 

Thus,  where  a  motion  to  vacate  a  judgment  was 
sustained  as  to  one  ground  and  overruled  as  to  others, 
and  the  order  vacating  the  judgment  was  reversed 
on  appeal,  the  defendant  will  be  allowed  to  appeal 
from  the  order  in  so  far  as  it  overrules  his  motion.  A 
party  in  whose  favor  a  ruling  has  been  made  has  not, 
of  course,  any  ground  for  appeal.  The  date  of  the 
entry  of  the  order  overruling  the  motion  as  to  the  re- 
maining grounds,  made  pursuant  to  the  reversal,  is 
therefore  the  date  when  the  adverse  ruling  first  be- 
comes effective  and  furnishes  a  ground  for  appeal.114 

Fifth,  by  estoppel. 

Thus,  where  the  clerk  of  the  court  makes  an  in- 
formal journal  entry  of  judgment  upon  a  verdict,  and 
a  new  trial  is  subsequently  denied,  the  successful  party 
by  subsequently  entering  a  formal  judgment  is  es- 
topped from  asserting  that  the  same  is  not  the  final 
judgment  in  the  case;  and  an  appeal  therefrom  will 
not  be  dismissed  because  not  taken  within  ninety  days 
from  the  date  of  the  order  denying  the  new  trial.  The 
judgment  is  deemed  to  be  entered  in  such  a  case  at 
the  time  of  the  filing  of  the  formal  judgment.115 

With  this  the  author  will  conclude  his  observations 
regarding  the  various  instances  in  which  the  beginning 

Co.,  57  Wash.  598,  107  Pac.  519;  Mercer  v.  Lloyd  Transfer 
Co.,  59  Wash.  560,  110  Pac.  389 ;  Herzog  v.  Palatine  Ins.  Co., 
36  Wash.  611,  79  Pac.  287;  Wooddy  v.  Seattle  Electric  Co., 
65  Wash.  539,  118  Pac.  633. 

114  See  Gray  v.  Washington  Water  Power  Co.,  30  Wash. 
154,  70  Pac.  255. 

115  Herzog  v.  Palatine  Ins.  Co.,  36  Wash.  611,  79  Pac.  287 ; 
Jemo  v.  Tourist  Hotel  Co.,  55  Wash.  595,  19  Ann.  Cas.  1199, 
104  Pac.  820. 


§  67      BILLS   OF   EXCEPTIONS   AND   STATEMENTS   OP   FACTS.       142 

of  the  time  within  which  the  proposed  bill  or  state- 
ment must  be  filed  and  served  may  be  postponed;  but 
before  proceeding  to  the  next  subject  will  briefly  note 
those  cases  in  which  attempts  have  been  unsuccessfully 
made  to  add  to  the  instances  already  given. 

Thus,  it  has  been  held  that  the  time  of  the  entry 
cannot  be  postponed  by  moving  for  a  correction  of  the 
judgment  entry,  and  taking  an  appeal  from  the  judg- 
ment as  corrected.116 

Nor  can  the  time  of  the  entry  be  postponed  by  con- 
sent of  the  parties.117 

Nor  can  the  time  of  the  entry  be  postponed  by  an 
order  of  the  court.118 

Nor  can  the  time  of  the  entry  be  postponed  by  a  nunc 
pro  tune  judgment  correcting  the  final  one.119 

Nor  can  the  time  of  the  entry  be  postponed  by  mov- 
ing to  vacate  an  appealable  order,  when  the  motion 
to  vacate  merely  brings  on  for  rehearing  matters  which 
have  already  been  heard  and  passed  upon.120 

It  is  also  held  that  where  a  motion  to  vacate  a  judg- 
ment is  denied,  the  beginning  of  the  time  within  which 
an  appeal  must  be  taken  from  the  order  cannot  be  post- 
poned by  the  filing  of  a  petition  to  reconsider  the  order 
of  denial,  and  by  taking  an  appeal  from  the  order  re- 
fusing to  reconsider;  and  that  if  the  appeal  from  the 
order  denying  the  vacation  of  the  judgment  is  not 
taken  within  the  time  prescribed  by  law,  the  appeal 
will  be  dismissed.121 

118  Agassiz  v.  Kelleher,  11  Wash.  88,  39  Pac.  228. 

117  Cogswell  v.  Hogan,  1  Wash.  4,  23  Pac.  835;  Stark  v. 
Jenkins,  1  Wash.  Ter.  421. 

118  State  v.  White,  40  Wash.  428,  82  Pac.  743. 

119  Schulze  v.  Oregon  Railroad  &  Navigation  Co.,  41  Wash 
614,  84  Pac.  587. 

120  Nicol  v.  Skagit  Boom  Co.,  12  Wash.  230,  40  Pac.  984. 

121  Pedigo  v.  Fuller,  37  Wash.  529,  79  Pac.  1129. 


143  PROPOSAL   OF   BILL   OB   STATEMENT.  §  68 

Where  judgment  is  entered  upon  a  verdict  by  the 
clerk,  and  thereafter  a  motion  for  a  new  trial  is  denied, 
the  date  of  the  entry  of  the  order  overruling  the  motion 
is,  as  has  been  already  shown,  the  beginning  of  the 
time  within  which  an  appeal  must  be  taken;  and  this 
cannot  be  postponed  by  the  losing  party  by  subse- 
quently entering  another  judgment.122 

§  68.  (r)  The  Method  of  Computing  the  Time 
Within  Which  the  Proposed  Bill  or  Statement  must  be 
Filed  and  Served. — The  time  within  which  the  pro- 
posed bill  or  statement  must  be  filed  and  served  is 
computed  by  excluding  the  first  day  and  including 
the  last,  unless  the  last  is  a  holiday  or  Sunday,  and 
then  it  is  also  excluded.128 

This  rule  governs  the  method  of  computing  the  time 
within  which  all  acts  relating  to  the  proposed  bill  or 
statement  must  be  done.12* 

122  Chilcott  v.  Globe  Navigation  Co.,  49  Wash.  302,  95  Pac. 
264;  Wooddy  v.  Seattle  Electric  Co.,  65  Wash.  539,  118  Pac. 
633. 

123  Rem.  &  Bal.  Code,  §  150 ;  Martin  v.  Sunset  Telephone  & 
Telegraph  Co.,  18  Wash.  260,  51  Pac.  376 ;  Wollin  v.  Smith,  27 
Wash.  349,  67  Pac.  561 ;  Delaski  v.  Northwestern  Improvement 
Co.,  61  Wash.  255,  112  Pac.  341 ;  State  ex  rel.  Bickford  v.  Ben- 
son, 21  Wash.  365,  58  Pac.  217 ;  Bank  of  Shelton  v.  Willey,  7 
Wash.  535,  35  Pac.  411. 

124  See  Tompson  v.  Huron  Lumber  Co.,  5  Wash.  527,  32  Pac. 
536.     See,  also,  the  following  cases :  Spokane  Falls  v.  Browne, 
3  Wash.  84,  27  Pac.  1077 ;  Rogers  v.  Trumbull,  32  Wash.  211, 
73  Pac.  381;  Hewitt  v.  Root,  31  Wash.  312,  71  Pac.  1021; 
Kubillus  v.  Ewert,  40  Wash.  38,  82  Pac.  147 ;  Spokane  &  Idaho 
Lumber  Co.  v.  Stanley,  25  Wash.  653,  66  Pac.  92 ;  Perkins  v. 
Jennings,  27  Wash.  145,  67  Pac.  590;  Scott  v.  Patterson,  1 
Wash.  487,  20  Pac.  593. 


BILLS   OP  EXCEPTIONS  AND   STATEMENTS   OF   FACTS.       144 


CHAPTER  VI. 

THE  PROPOSAL  OF  AMENDMENTS. 

§  69.    Divisions  of  the  Subject. 

§  70.     The  Character  of  the  Proposed  Amendments. 

§  71.  When  the  Proposed  Amendments  must  be  Filed  and 
Served. 

§  72.  The  Legal  Effect  of  a  Failure  to  File  and  Serve  the 
Proposed  Amendments  Within  the  Time  Prescribed 
by  Statute. 

§  73.  The  Precedence  Which  must  be  Observed  and  Followed 
in  the  Filing  and  Service  of  the  Proposed  Amend- 
ments. 

§  74.    The  Proof  of  Filing. 

§  75.     The  Kind  of  Service  Provided  for  by  Statute. 

§  76.  By  Whom  the  Proposed  Amendments  may  be  Filed 
and  Served. 

§  77.  The  Various  Methods  of  Serving  the  Proposed  Amend- 
ments. 

§  78.  Upon  Whom  It  is  Necessary  to  Serve  the  Proposed 
Amendments. 

§  79.     The  Proof  of  Service  of  the  Proposed  Amendments. 

§  80.  Whether  the  Time  Within  Which  the  Proposed 
Amendments  must  be  Filed  and  Served  can  be  Ex- 
tended. 

§  81.  When  the  Time  Within  Which  the  Proposed  Amend- 
ments must  be  Filed  and  Served  Begins  to  Run. 

§  82.  Whether  the  Beginning  of  Such  Time  may  be  Post- 
poned. 

§  83.  The  Method  of  Computing  the  Time  Within  Which 
the  Proposed  Amendments  must  be  Filed  and 
Served. 

§  84.    When  the  Proposed  Amendments  may  be  Accepted. 

§  85.     The  Methods  of  Accepting  the  Proposed  Amendments. 


145  PROPOSAL   OF   AMENDMENTS.  §  69 

§  86.  The  Methods  of  Proving  the  Acceptance  of  the  Pro- 
posed Amendments. 

§  87.  The  Legal  Effect  of  the  Acceptance  of  the  Proposed 
Amendments. 

§  69.  Divisions  of  the  Subject. — By  the  proposal 
of  amendments  is  meant  the  submission  of  amend- 
ments to  the  proposed  bill  or  statement  for  settlement 
and  certification;  and  this  must  be  regular.  The  sub- 
ject will  be  considered  as  follows: 

(a)  With  reference  to  the  character  of  the  pro- 
posed amendments. 

(b)  With  reference  to  the  time  when  the  proposed 
amendments  must  be  filed  and  served. 

(c)  With  reference  to  the  legal  effect  of  a  failure  to 
file  and  serve  the  proposed  amendments  within  the 
time  prescribed  by  statute. 

(d)  With  reference  to  the  precedence  which  must 
be  observed  and  followed  in  the  filing  and  service  of 
the  proposed  amendments. 

(e)  With  reference  to  the  proof  of  filing. 

(f)  With  reference  to  the  kinds  of  service  provided 
for  by  statute. 

(g)  By  whom  the  proposed  amendments  may  be  filed 
and  served. 

(h)  With  reference  to  the  various  methods  of  serv- 
ing the  proposed  amendments. 

(i)  Upon  whom  it  is  necessary  to  serve  the  proposed 
amendments. 

(j)  With  reference  to  the  proof  of  service. 

(k)  Whether  the  time  within  which  the  proposed 
amendments  must  be  filed  and  served  can  be  extended. 

(1)  When    the    time    within    which    the    proposed 
amendments  must  be  filed  and  served  begins  to  run. 
10 


§§  70,  71     BILLS  OP  EXCEPTIONS  AND  STATEMENTS  OF  FACTS.      14G 

(m)  Whether  the  beginning  of  such  time  may  be 
postponed. 

(n)  With  reference  to  the  method  of  computing  the 
time  within  which  the  proposed  amendments  must  be 
filed  and  served. 

(o)  When  the  proposed  amendments  may  be  ac- 
cepted. 

(p)  The  methods  of  accepting  the  proposed  amend- 
ments. 

(q)  The  methods  of  proving  such  acceptance. 

(r)  The  legal  effect  of  an  acceptance  of  the  pro- 
posed amendments. 

And  first,  with  reference  to 

§  70.  The  Character  of  the  Proposed  Amendments. 
The  proposed  amendments  must  be  substantial  in  their 
character,  or  they  will  be  disregarded.1 

Proposed  amendments  which  go  no  further  than  to 
move  the  striking  of  the  bill  or  statement  which  is 
partly  in  the  narrative  form  and  the  substitution  of 
the  notes  of  the  stenographer  are  not  sufficient.  They 
should  point  out  wherein  the  bill  or  statement  is  er- 
roneous.2 

§  71.  When  the  Proposed  Amendments  must  be 
Filed  and  Served. — The  proposed  amendments  must 
be  filed  and  served  upon  the  party  proposing  the  bill 
or  statement  within  ten  days  after  the  service  of  the 
bill  or  statement;  and  if  not  filed  and  served  within 
that  time,  the  proposed  bill  or  statement  will  be  deemed 

1  Home  Savings  &  Loan  Assn.  v.  Burton,  20  Wash.  688,  56 
Pac.  940. 

2  State  ex  reL  Hofstetter  v.  Sheeks,  63  Wash.  408,  115  Pac. 
859. 


147  PROPOSAL   OP   AMENDMENTS.  §  72 

agreed  to,  and  the  correctness  of  its  contents  cannot 
thereafter  be  questioned.3 

The  ten  days  allowed  by  statute  for  filing  and  serv^ 
ing  the  proposed  amendments  may,  however,  be  waived 
by  consenting  to  the  certification  of  the  bill  or  state- 
ment before  the  expiration  of  the  ten  days.4 

The  lower  court  has  not,  therefore,  any  authority 
to  allow  the  bill  or  statement  to  be  withdrawn  for  the 
purpose  of  amendment  and  refiling  after  the  time  for 
proposing  amendments  has  expired,  even  though  the 
time  limited  by  statute  for  the  filing  and  service  of 
the  bill  or  statement  itself  has  not  expired.6 

Is  not  this  rule  fairly  debatable?  6 

Where,  however,  the  time  for  proposing  amendments 
has  not  expired,  a  bill  or  statement  filed  without  ser- 
vice may,  under  an  order  of  the  court,  be  withdrawn 
and  thereafter  refiled  and  served  at  any  time  before  the 
time  within  which  the  bill  or  statement  must  be  filed 
and  served  has  expired.7 

§  72.  The  Legal  Effect  of  a  Failure  to  File  and 
Serve  the  Proposed  Amendments  Within  the  Time 
Prescribed  by  Statute. — The  legal  effect  of  a  failure  to 
file  and  serve  the  proposed  amendments  within  the 
time  prescribed  by  statute  is  a  settlement  of  the  pro- 
posed bill  or  statement  by  the  implied  agreement  of 
the  parties;  in  which  event  the  proposed  bill  or  state- 
ment shall  not  only  be  deemed  agreed  to,  as  shown  in 

8  State  ex  rel.  Hersner  v.  Arthur,  7  Wash.  358,  35  Pac.  120; 
Warburton  v.  Ralph,  9  Wash.  537,  38  Pac.  140. 

4  State  ex  rel.  Fetterley  v.  Griffin,  32  Wash.  67,  72  Pac. 
1030. 

8  State  ex  rel.  Royal  v.  Linn,  35  Wash.  116,  76  Pac.  513. 

8  See  §  120,  infra. 

1  Weatherall  v.  Weatherall,  56  Wash.  344,  105  Pac.  822. 


§  72      BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OP    PACTS.        148 

the  preceding  section,  but  shall  be  certified  by  the 
judge  at  the  instance  of  either  party,  at  any  time,  with- 
out notice  to  any  other  party  on  proof  being  filed  of 
its  service,  and  that  no  amendments  have  been  pro- 
posed.8 

There  does  not  seem  to  be  any  authority  bearing 
directly  on  the  proposition  that  where  proposed  amend- 
ments have  not  been  filed  and  served  within  the  time 
prescribed  by  statute,  the  filing  of  proof  of  service  of 
the  bill  or  statement,  and  proof  that  no  amendments 
have  been  proposed,  are  conditions  precedent  to  appel- 
lant's right  to  a  certification  of  the  bill  or  statement 
without  notice.  In  an  early  case  the  court  said:  "At 
any  time  after  the  expiration  of  the  ten  days'  limita- 
tion either  party  to  the  action  may  have  the  statement 
certified,  without  notice  to  any  other  party,  by  apply- 
ing to  the  court  and  making  the  requisite  proof;  and 
of  this  right  he  cannot  be  deprived,  either  directly  or 
indirectly,  by  any  order  of  the  court. ' ' 8 

The  requisite  proof  is,  of  course,  the  statutory  proof 
of  the  filing  and  service  of  the  proposed  bill  or  state- 
ment, and  that  no  amendments  have  been  proposed. 

The  provision  is,  no  doubt,  intended  solely  for  the 
benefit  of  the  court  or  judge;  and  it  is  apprehended 
that  where  the  judge  certifies  the  bill  or  statement 
without  requiring  such  proof,  or  overlooks  its  absence 

8  Rem.  &  Bal.  Code,  §  389.  See  §  10,  supra;  Bruce  v.  Foley, 
18  Wash.  96,  50  Pac.  935 ;  State  ex  rel.  Hersner  v.  Arthur,  7 
Wash.  358,  35  Pac.  120;  Home  Savings  &  Loan  Assn.  v. 
Burton,  20  Wash.  688,  56  Pac.  940;  Maney  v.  Hart,  11  Wash. 
67,  39  Pac.  268 ;  Hansen  v.  Nilson,  17  Wash.  606,  50  Pac.  511 ; 
O'Neile  v.  Ternes,  32  Wash.  528,  73  Pac.  692;  Downs  Farmers' 
Warehouse  Assn.  v.  Pioneer  Mutual  Ins.  Assn.,  41  Wash.  372, 
83  Pac.  423. 

•  Warburton  v.  Ralph,  9  Wash.  537,  38  Pac.  140. 


149  PROPOSAL,   OF   AMENDMENTS.  §  73 

from  the  record,  the  complaining  party  must  affirma- 
tively show  by  the  record  that  some  substantial  injury 
has  resulted  therefrom.  He  certainly  could  not  suc- 
cessfully invoke  the  statute  where  he  is  himself  the 
applicant  for  the  certification;  and  therefore,  where 
he  is  not  the  applicant,  it  is  quite  clear  that,  as  the 
complaining  party,  he  must  at  least  affirmatively  show 
by  the  record  that  he  has  sustained  some  substantial 
injury  as  a  result  of  the  failure  to  file  such  proof.  This 
proof  usually  consists  of  the  affidavit  of  the  attorney. 
In  a  case  somewhat  later  than  the  one  last  cited,  the 
court  said:  "It  is  also  true  that  there  is  nothing  what- 
ever in  the  record  showing  that  the  respondent,  within 
the  time  limited  by  law,  or  at  any  time,  filed  and  served 
on  the  appellant  any  amendments  or  objections  to  the 
statement  as  filed,  and  we  must  therefore  presume,  as 
the  law  presumes,  that  the  respondent  agreed  to  the 
same.  And  that  being  so,  there  was  nothing  for  the 
court  to  'settle,'  and  it  was  perfectly  legitimate  for 
the  judge  to  certify  the  statement  in  the  absence  of, 
and  without  notice  to,  the  respondent  or  his  attor- 
neys."10 

§  73.  The  Precedence  Which  must  be  Observed  and 
Followed  in  the  Filing  and  Service  of  the  Proposed 
Amendments. — The  provision  of  the  statute  in  this  re- 
spect is  identical  with  that  which  relates  to  the  filing 
and  service  of  the  original  bill  or  statement.  Thus, 
the  statute  provides: 

"Within  ten  days  after  such  service  any  other  party 
may  file  and  serve  on  the  proposing  party,  any  amend- 
ments which  he  may  propose  to  the  bill  or  state- 
ment."11 

10  Maney  v.  Hart,  11  Wash.  67,  39  Pac.  268. 

11  Bern.  &  Bal.  Code,  §  389.     See  §  10,  supra. 


§§74^76     BILLS  OP  EXCEPTIONS  AND  STATEMENTS  OF  FACTS.     150 

It  is  therefore  also  the  rule  that  the  proposed  amend- 
ments must  be  filed  before  they  are  served;  and  that 
if  the  service  precedes  the  filing,  the  proposed  amend- 
ments will  be  stricken  from  the  cause  or  disregarded.12 

This  rule  is  recognized  in  the  following  case  where 
it  was  held  that  when  the  proposed  amendments  are 
filed  and  served  upon  the  same  day,  and  there  is  noth- 
ing in  the  record  by  which  the  precedence  may  be  de- 
termined, it  will  be  presumed,  in  the  absence  of  an 
express  showing  to  the  contrary,  that  the  proposed 
amendments  were  filed  before  they  were  served.18  • 

§  74.  The  Proof  of  Filing. — The  rule  which  governs 
the  proof  of  filing  the  original  bill  or  statement  is 
equally  applicable  to  the  proof  of  filing  the  proposed 
amendments.14 

§  75.  The  Kind  of  Service  Provided  for  by  Statute. 
Unlike  the  service  of  the  original  bill  or  statement 
which,  as  has  been  shown,  may  be  both  actual  and 
constructive,  the  service  of  the  proposed  amendments 
is  an  actual  service  on  the  proposing  party.15 

In  this  connection  the  reader's  attention  is  directed 
to  sections  54,  55,  56  and  58  of  this  work. 

§  76.  By  Whom  the  Proposed  Amendments  may 
be  Filed  and  Served. — The  statutory  provision  is  that 
"within  ten  days  after  such  service  any  oilier  party 
may  file  and  serve  on  the  proposing  party,  any  amend- 
ments which  he  may  propose  to  the  bill  or  statement." 

12  See  §  52,  supra,  and  cases  cited. 

13  Standard  Furniture  Co.  v.  Anderson,  38  Wash.  582,  80 
Pac.  813. 

14  See  §  53,  supra,  and  cases  cited. 

"  Rem.  &  Bal.  Code,  §  389.     See  §  10,  supra. 


151  PROPOSAL,   OP   AMENDMENTS.  §§  77-80 

The  clause  "any  other  party"  here  means,  first,  any 
party  who  will  or  may  be  affected  by  the  appeal ;  and, 
secondly,  any  other  party  who  has  appeared  in  the 
cause,  has  an  appealable  interest  therein,  and  who 
may  join  in  an  appeal  by  reason  of  the  fact  that  he  is 
similarly  affected  by  the  ruling  of  the  lower  court. 

In  this  connection  the  reader's  attention  is  directed 
to  sections  56  and  58  of  this  work. 

§  77.  The  Various  Methods  of  Serving  the  Pro- 
posed Amendments. — The  rules  which  govern  the  vari- 
ous methods  of  serving  the  original  bill  or  statement 
are  equally  applicable  to  the  service  of  the  proposed 
amendments.1* 

§  78.  Upon  Whom  It  is  Necessary  to  Serve  the 
Proposed  Amendments. — The  only  party  upon  whom 
it  is  necessary  to  serve  the  proposed  amendments  is 
the  proposing  party;  that  is,  the  one  who  proposed  the 
original  bill  or  statement." 

§  79.  The  Proof  of  Service  of  the  Proposed  Amend- 
ments.— The  rules  which  govern  the  proof  of  service 
of  the  original  bill  or  statement  are  equally  applicable 
to  the  proof  of  service  of  the  proposed  amendments.18 

§  80.  Whether  the  Time  Within  Which  the  Pro- 
posed Amendments  must  be  Filed  and  Served  can  be 
Extended. — The  time  within  which  the  proposed 
amendments  must  be  filed  and  served  cannot  be  ex- 
tended. This  rule  is  recognized  in  the  following  case 
wherein  the  court  said:  "The  time  within  which. 

16  See  §  57,  supra,  and  cases  cited. 

1T  Rem.  &  Bal.  Code,  §  389.     See  §  10,  wpra. 

18  See  §  59,  supra,  and  cases  cited. 


§§  81,  82     BILLS  OP  EXCEPTIONS  AND  STATEMENTS  OF  FACTS.     152 

amendments  may  be  filed  and  served  is  expressly  lim- 
ited to  ten  days  after  service  of  a  copy  of  the  proposed 
statement  of  facts  on  the  adverse  party,  and  the  court 
has  no  power  or  authority  to  extend  the  statutory 
period. ' ' " 

§  81.  When  the  Time  Within  Which  the  Proposed 
Amendments  must  be  Filed  and  Served  Begins  to  Run. 
The  time  within  which  the  proposed  amendments  must 
be  filed  and  served  begins  to  run  when  the  original  bill 
or  statement  has  been  served.20 

§  82.  Whether  the  Beginning  of  Such  Time  may  be 
Postponed. — It  is  a  settled  rule  that  the  bill  or  state- 
ment as  originally  proposed  must  be  a  substantial  bill 
or  statement;  that  is,  it  must  in  the  first  instance  con- 
tain substantially  all  the  material  facts,  matters  and 
proceedings  occurring  in  the  cause,  or  part  of  the 
cause,  as  the  case  may  be,  not  already  a  part  of  the 
record,  and  that  if  it  does  not,  it  is  not  sufficient  in 
substance  to  compel  an  adversary  to  resort  to  the  stat- 
utory remedy  of  proposed  amendments.  When,  there- 
fore, the  bill  or  statement  as  originally  proposed  is 
manifestly  not  such  as  the  statute  contemplates  should 
be  proposed  in  the  first  instance,  it  will,  on  motion,  be 
stricken  from  the  cause  in  the  first  instance  where  it  is 
apparent  that  the  party  proposing  it  is  guilty  of  bad 
faith  in  its  preparation,  or  guilty  of  such  gross  negli- 
gence as  amounts  to  bad  faith;  and  when  bad  faith  is 
not  manifest,  but  it  is  manifest  that  the  proposed  bill 
or  statement  is  not  a  substantial  embodiment  of  all  the 
material  facts,  matters  and  proceedings  occurring  in 
the  cause,  or  part  of  the  cause,  as  the  case  may  be,  not 

19  Warburton  v.  Ralph,  9  Wash.  537,  38  Pac.  140. 

20  Rem.  &  Bal.  Code,  §  389.     See  §  10,  supra. 


153  PROPOSAL   OF   AMENDMENTS.  §  82 

already  a  part  of  the  record,  the  party  proposing  it 
will,  on  motion,  be  required  to  correct  it  until  it  shall 
have  been  made  substantial  and  such  as  the  statute 
contemplates  should  be  proposed  in  the  first  instance, 
and  if  not  corrected  pursuant  to  the  order  or  orders  for 
its  correction,  the  proposed  bill  or  statement  will  be 
stricken  from  the  cause.21 

From  this  it  logically  follows  that  the  beginning  of 
the  time  within  which  proposed  amendments  must  be 
filed  and  served  may  be  postponed  by  an  application 
for  an  order  requiring  that  the  proposed  bill  or  state- 
ment be  made  substantial,  when  the  application  is 
made  in  good  faith  and  before  the  expiration  of  the 
time  limited  by  the  statute  for  the  proposal  of  amend- 
ments ;  for  the  statute  plainly  contemplates  that  either 
such  an  application  will  be  made,  or  that  proposed 
amendments  will  be  filed  and  served  within  the  time 
prescribed  for  the  proposal  of  amendments  to  a  sub- 
stantial bill  or  statement,  and  that  if  neither  remedy 
is  resorted  to,  the  proposed  bill  or  statement  will  be 
deemed  to  be  both  substantial  and  correct. 

Where  the  order  is  granted  pursuant  to  the  applica- 
tion, the  beginning  of  the  time  will,  no  doubt,  be  post- 
poned until  the  order  requiring  the  proposed  bill  or 
statement  to  be  made  substantial  shall  have  been  com- 
plied with;  that  is,  until  the  filing  and  service  of  a 
substantial  bill  or  statement  pursuant  to  the  order  or 
orders  of  the  judge;  for,  after  having  been  made  sub- 
stantial, it  may  still  be  subject  to  correction  by  the 
proposal  of  amendments,  and  not  subject  to  attack  by 
further  motions,  as  motions  are  only  intended  to  reach 
a  proposed  bill  or  statement  which  is  manifestly  not 

41  State  ex  rel.  Fowler  v.  Steiner,  51  Wash.  239,  98  Pac.  609 ; 
State  ex  rel.  Roberts  v.  Clifford,  55  Wash.  440,  104  Pac.  631. 
See,  also,  §  42,  supra. 


§§  83,  84     BILLS  OF  EXCEPTIONS  AND  STATEMENTS  OP  FACTS.     154 

substantial  and  are  not  intended  as  remedies  for  minor 
defects. 

But  when  the  application  has  been  refused,  the  be- 
ginning of  the  time  will,  no  doubt,  be  postponed  until 
the  entry  of  the  order,  if  made  at  the  time  of  the  hear- 
ing, and  in  other  cases  until  the  service  of  a  copy  of 
the  order  with  written  notice  of  the  filing  thereof  upon 
the  party  appealing,  or  his  attorney;  for  the  order  is 
deemed  to  be  an  order  in  the  cause  itself.22 

And  it  is  also  clearly  an  order,  other  than  the  final 
judgment,  which  may  be  directly  reviewed  by  the  su- 
preme court  upon  an  application  for  a  writ  of  mandate, 
an  appeal  being  inadequate,  for  it  clearly  affects  a  sub- 
stantial right. " 

§  83.  The  Method  of  Computing  the  Time  Within 
Which  the  Proposed  Amendments  must  be  Piled  and 
Served. — The  time  within  which  the  proposed  amend- 
ments must  be  filed  and  served  is  computed  by  exclud- 
ing the  first  day  and  including  the  last,  unless  the  last 
is  a  holiday  or  Sunday,  and  then  it  is  also  excluded. 

This  is  the  rule  which  governs  the  method  of  com- 
puting the  time  within  which  the  proposed  bill  or 
statement  must  be  filed  and  served,  and  it  is  equally 
applicable  to  the  proposed  amendments.84 

§  84.  When  the  Proposed  Amendments  may  be 
Accepted. — The  statute  prescribes  no  time  within 
which  the  proposed  amendments  must  be  accepted.  It 

22  Rem.  &  Bal.  Code,  §§  393,  1731.     See  §§  14,  23,  supra. 

28  Rem.  &  Bal.  Code,  §  1718.  See  §  20,  supra;  State  ex  rel. 
Fowler  v.  Steiner,  51  Wash.  239,  98  Pac.  609 ;  State  ex  rel. 
Roberts  v.  Clifford,  55  Wash.  440,  104  Pac.  631.  See,  also, 
§  42,  supra. 

24  See  §  68,  supra. 


155  PROPOSAL   OP   AMENDMENTS.  §  85 

simply  provides  that  "if  amendments  be  proposed  and 
accepted,  the  bill  or  statement  as  so  amended  shall  like- 
wise be  certified  on  proof  being  filed  of  its  service  and 
the  service  and  acceptance  of  the  amendments. ' ' 25 

The  rational  rule  would  therefore  appear  to  be  that 
the  proposed  amendments  may  be  accepted  at  any  time 
before  the  conclusion  of  the  hearing  of  the  application 
to  settle  and  certify  the  bill  or  statement,  and,  with  the 
consent  of  the  judge,  at  any  time  thereafter  and  before 
the  certification. 

§  85.  The  Methods  of  Accepting  the  Proposed 
Amendments. — There  are  no  statutory  regulations  or 
rules  of  the  supreme  court  relating  to  or  governing  the 
method  of  accepting  the  proposed  amendments;  but 
there  is  a  rule  which  is  a  safe  guide  in  the  absence  of 
such  rules  and  regulations,  and  that  is  the  rule  so  often 
announced  by  the  court,  namely,  that  the  supreme 
court  acts  only  upon  the  record. 

Any  method,  therefore,  by  which  the  acceptance  of 
the  proposed  amendments  may  be  made  to  appear  in 
the  record  on  appeal  is,  no  doubt,  proper.  Thus,  the 
proposed  amendments  may  be  accepted: 

1.  By  a  written  acceptance  indorsed  upon  the  pro- 
posed amendments,  just  as  the  acceptance  of  the  ser- 
vice of  the  proposed  amendments  is  often  made  to 
appear. 

2.  By  the  filing  of  a  formal  written  acceptance. 

3.  By  a  formal  acceptance  of  the  proposed  amend- 
ments in  open  court  when  such  acceptance  is  made  a 
part  of  the  record  on  appeal;  as  where,  for  instance, 
it  is  embodied  in  the  bill  or  statement  as  certified.26 

25  Rem.  &  Bal.  Code,  §  389.     See  §  10,  mpra. 
28  See  Kane  v.  Kane,  35  Wash.  517,  77  Pac.  842 ;  State  er 
rel.  Fetterley  v.  Griffin,  32  Wash.  67,  72  Pac.  1030. 


§§86,87     BILLS  OP  EXCEPTIONS  AND  STATEMENTS  OF  FACTS.     156 

§  86.  The  Methods  of  Proving  the  Acceptance  of 
the  Proposed  Amendments. — The  methods  of  proving 
the  acceptance  of  the  proposed  amendments  are,  of 
course,  the  same  as  the  methods  of  accepting  them;  for 
any  method  by  which  the  acceptance  of  the  proposed 
amendments  may  be  made  to  appear  in  the  record  on 
appeal  is,  at  the  same  time,  a  method  by  which  such 
acceptance  may  be  proved. 

The  acceptance  of  the  proposed  amendments  may 
therefore  be  proved: 

1.  By  a  written  acceptance  indorsed  upon  the  pro- 
posed amendments,  just  as  the  acceptance  of  the  ser- 
vice of  the  proposed  amendments  is  often  made  to 
appear. 

2.  By  the  filing  of  a  formal  written  acceptance. 

3.  By  a  formal  acceptance  of  the  proposed  amend- 
ments in  open  court  when  such  acceptance  is  made  a 
part  of  the  record  on  appeal ;  as  where,  for  instance,  it 
is  embodied  in  the  bill  or  statement  as  certified." 

§  87.  The  Legal  Effect  of  the  Acceptance  of  the 
Proposed  Amendments. — The  legal  effect  of  an  accept- 
ance of  the  proposed  amendments  is  a  settlement  of 
the  proposed  bill  or  statement  as  so  amended  by  the 
express  agreement  of  the  parties;  in  which  event  the 
proposed  bill  or  statement  as  so  amended  shall  be  cer- 
tified by  the  judge  at  the  instance  of  either  party,  at 
any  time,  without  notice  to  any  other  party,  on  proof 
being  filed  of  the  service  of  the  original  bill  or  state- 
ment and  the  service  and  acceptance  of  the  amend- 
ments.28 

27  Kane  v.  Kane,  35  Wash.  517,  77  Pac.  842 ;  State  ex  rel. 
Fetterley  v.  Griffin,  32  Wash.  67,  72  Pac.  1030. 
"  Rem.  &  Bal.  Code,  §  389.     See  §  10,  supra. 


157  PROPOSAL  OF   AMENDMENTS.  §  87 

There  does  not  seem  to  be  any  authority  bearing 
directly  on  the  proposition  that  where  proposed  amend- 
ments have  been  accepted,  the  filing  of  such  proof  is 
a  condition  precedent  to  the  right  to  a  certification  of 
the  bill  or  statement  as  so  amended  without  notice. 

The  provision  of  the  statute  requiring  such  proof  to 
be  filed  is  clearly  intended  for  the  benefit  of  the  court 
or  judge;  and  it  is  apprehended  that  where  the  judge 
certifies  the  bill  or  statement  as  so  amended  without 
requiring  such  proof,  or  overlooks  its  absence  from 
the  record,  the  complaining  party  must  affirmatively 
show  by  the  record  that  some  substantial  injury  has 
resulted  therefrom.29 

29  See  §  72,  supra,  and  cases  cited ;  Maney  v.  Hart,  11  Wash. 
67,  39  Pac.  268. 


§§  88,  89     BILLS  OF  EXCEPTIONS  AND  STATEMENTS  OF  FACTS.     158 


CHAPTER  VII. 
THE  SETTLEMENT  OF  THE  BILL  OR  STATEMENT. 

§  88.     Divisions  of  the  Subject. 

§  89.  The  Distinction  Between  the  Settlement  and  the 
Certification  of  the  Bill  or  Statement. 

§  90.  The  Propriety  of  Considering  the  Settlement  of  the 
Bill  or  Statement  in  Connection  With  the  Certifica- 
tion. 

§  88.  Divisions  of  the  Subject. — We  now  approach 
an  intricate  title  which  will  require  some  degree  of 
attention,  and  which,  for  the  sake  of  clearness,  will  be 
considered,  first,  with  reference  to  the  distinction  be- 
tween the  settlement  and  the  certification  of  the  bill 
or  statement;  and  secondly,  with  reference  to  the  pro- 
priety of  considering  the  settlement  of  the  bill  or  state- 
ment in  connection  with  its  certification,  which  will  be 
the  title  of  the  following  chapter.  And  first,  with  ref- 
erence to 

§  89.  The  Distinction  Between  the  Settlement  and 
the  Certification  of  the  Bill  or  Statement. — The  settle- 
ment of  the  bill  or  statement  may  be  defined  to  be  the 
determination  that  the  bill  or  statement  as  originally 
proposed,  or  as  finally  amended,  as  the  case  may  be, 
is  perfect  only  in  so  far  as  its  contents  are  concerned. 

This  settlement  or  determination  may  be  evidenced 
either  by  the  implied  agreement  of  the  parties,  as 
where  amendments  to  the  bill  or  statement  have  not 
been  proposed ;  or  by  the  express  agreement  of  the  par- 
ti(s,  as  where  amendments  to  the  bill  or  statement 
have  been  proposed  within  the  time  prescribed  by 
statute  and  accepted;  or  finally,  by  the  certification  of 


159  SETTLEMENT   OF  BILL   OR   STATEMENT.  §  89 

the  judge  when  the  proposed  bill  or  statement  has  been 
settled  by  himself. 

The  certification  of  the  bill  or  statement  is,  as  the 
word  itself  signifies,  the  making  certain  that  the  pro- 
posed bill  or  statement  is,  in  all  respects,  a  proper  bill 
or  statement;  that  is,  that  the  bill  or  statement  is 
worthy  of  the  consideration  of  the  supreme  court.  The 
certification  may,  therefore,  be  defined  to  be  the  deter- 
mination by  the  judge  that  the  bill  or  statement  as 
originally  proposed  or  as  finally  amended,  as  the  case 
may  be,  has  been  duly  settled;  that  is,  that  all  statu- 
tory regulations  and  rules  of  the  supreme  court  relat- 
ing to  the  subject  of  bills  of  exceptions  and  statements 
of  facts  have  been  observed  and  followed. 

This  is  the  plain  distinction  between  the  settlement 
of  the  bill  or  statement,  and  its  certification;  for  other- 
wise the  statutory  requirement  that  the  bill  or 
statement  shall  be  certified  by  the  judge  even  when 
amendments  have  not  been  proposed,  as  well  as  when 
proposed  amendments  have  been  accepted  (in  both  of 
which  cases  the  correctness  of  the  bill  or  statement, 
in  so  far  as  its  contents  are  concerned,  is  agreed  upon 
by  the  parties),  would  be  a  useless  requirement,  for 
the  reason  that  all  statutory  regulations  and  the  rules 
of  the  supreme  court  relating  to  the  subject  of  bills  of 
exceptions  and  statements  of  facts  are,  forsooth,  direc- 
tory and  not  mandatory,  and  therefore  useless,  and 
that  the  meaning  of  a  "proper"  bill  or  statement,  as 
contemplated  by  the  statutes,  is  confined  to  a  bill  or 
statement  which  is  perfect  with  respect  to  its  contents 
only;  a  combination  of  absurdities  which  the  most  ordi- 
nary reason  must  repudiate. 

The  statutes  do  not  permit  irregularities.  They 
simply  contemplate  that  a  failure  to  comply  with  their 
provisions,  or  with  the  rules  of  the  supreme  court,  does 


§  89       BILLS   OP  EXCEPTIONS  AND   STATEMENTS   OF   PACTS.        160 

not  forbid  subsequent  attempts  to  comply  therewith  so 
long  as  the  right  itself  to  a  proper  bill  or  statement 
is  not  barred  by  lapse  of  time.  In  other  words,  the 
statutes  simply  mean  that  if  there  has  been  an  irregu- 
larity, the  party  may  correct  it  at  any  time  before 
the  statutory  limitation  has  barred  his  right  to  a 
"proper"  bill  or  statement. 

The  following  observation  of  the  court,  though  lim- 
ited and  confined  to  the  particular  matters  before  it,  is 
sufficient  to  illustrate  the  statutory  meaning  of  a 
proper  bill  or  statement:  "We  think  that  a  proper 
statement  must  be  such  a  one  as  has  been  settled  after 
all  notices  have  been  given  to  the  parties,  as  prescribed 
by  law. ' ' 1 

This  distinction  between  the  settlement  and  certifi- 
cation of  the  proposed  bill  or  statement  reveals  the 
fact  that  the  proposed  bill  or  statement  may  be  abso- 
lutely perfect  in  so  far  as  its  contents  are  concerned, 
and  still  be  absolutely  worthless  and,  therefore,  not  a 
proper  bill  or  statement;  as,  for  example,  where  the 
proposed  bill  or  statement  is  settled  by  the  express 
agreement  of  the  parties  when  proposed  amendments 
have  been  accepted,  and  it  appears  upon  the  presenta- 
tion of  the  proposed  bill  or  statement  to  the  judge  for 
certification  that  it  has  not  been  filed  or  served  within 
the  time  limited  by  statute. 

Here  the  proposed  bill  or  statement,  though  perfect 
as  to  its  contents,  and  settled  by  the  express  agree- 
ment of  the  parties,  is  not  a  bill  of  exceptions  or  state- 
ment of  facts  at  all,  for  a  mandatory  requirement  of 
the  statute  has  been  disregarded,  namely,  the  require- 
ment that  the  proposed  bill  or  statement  must  be  filed 
and  served  within  the  particular  time  prescribed  by 

1  First  National  Bank  of  Aberdeen  v.  Andrews,  11  Wash. 
409,  39  Pac.  672. 


161  SETTLEMENT   OP  BILL  OR   STATEMENT.  §  89 

the  statute.  It  is  not  a  proper  bill  or  statement, 
though  perfect  as  to  its  contents,  for  it  has  no  legal 
effect.  Many  other  illustrations  might  be  given,  but 
the  above  is  sufficient. 

The  judge  could  not,  therefore,  in  such  a  case,  be 
compelled  to  certify  the  proposed  bill  or  statement, 
even  though  the  statute  provides  that  "if  no  amend- 
ment shall  be  served  within  the  time  aforesaid,  the 
proposed  bill  or  statement  shall  be  deemed  agreed  to 
and  shall  be  certified  by  the  judge  at  the  instance  of 
either  party,  at  any  time,  without  notice  to  any  other 
party  on  proof  being  filed  of  its  service,  and  that  no 
amendments  have  been  proposed;  and  if  amendments 
be  proposed  and  accepted,  the  bill  or  statement  as  so 
amended  shall  likewise  be  certified  on  proof  being  filed 
of  its  service  and  the  service  and  acceptance  of  the 
amendments. ' ' 2 

For  this  provision  of  the  statutes  must  be  construed 
in  connection  with  another  section  of  the  statutes 
which  provides  that  "if  the  judge  refuse  to  settle  or 
certify  a  bill  of  exceptions  or  statement  of  facts,  or 
to  correct  or  supplement  his  certificate  thereto,  in  a 
proper  case,  he  may  be  compelled  so  to  do  by  a  man- 
date issued  out  of  the  supreme  court,  either  pending 
an  appeal  or  prior  thereto. ' ' 8 

When  so  construed  it  at  once  becomes  clear  that  this 
is  not  a  proper  case  for  mandamus;  for  mandamus  will 
not  lie  to  compel  the  certification  of  a  bill  or  statement 
which  has  been  served  before  filing.4 

2  Bern.  &  Bal.  Code,  §  389.     See  §  10,  supra. 
8  Rem.  &  Bal.  Code,  §  391.     See  §  12,  supra. 
*  State  ex  rel.  Palmer  Mountain  Tunnel  &  Power  Co.  v. 
Superior  Court,  63  Wash.  442,  115  Pac.  845. 
11 


§  89       BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OP   FACTS.        162 

And  by  a  parity  of  reasoning  mandamus  would  not 
lie  to  compel  the  certification  of  a  bill  or  statement 
which  had  not  been  filed  and  served  within  the  time 
prescribed  by  statute. 

It  thus  appears  that  the  settlement  of  the  proposed 
bill  or  statement  is  a  mere  ministerial  act,  something 
that  doe's  not  require  the  exercise  of  any  judicial  func- 
tion, since  it  may  be  effected  by  the  parties  themselves. 

On  the  other  hand,  the  certification  is  a  judicial  act, 
because  it  requires  and  involves  the  exercise  of  judi- 
cial functions,  namely,  the  application  to  the  proposed 
bill  or  statement  of  the  statutory  regulations  and  the 
rules  of  the  supreme  court  which  govern  the  subject 
of  bills  of  exceptions  and  statements  of  facts.8 

Since  the  settlement  of  the  bill  or  statement  is  a 
mere  ministerial  act,  it  follows  that  the  supreme  court 
may,  in  a  proper  case,  appoint  a  referee  to  decide  and 
report  upon  what  the  bill  or  statement  should  contain ; 
in  which  event  it  becomes  the  duty  of  the  supreme 
court  itself  to  apply  the  rules  of  law  involved  in  the 
certification,  because  the  application  of  the  rules  of 
law  involved  in  the  certification  of  the  bill  or  statement 
is  a  judicial  act  which  cannot  be  delegated  to  a  referee." 

It  is  true  that  the  statutes,  in  one  particular  in- 
stance, provide  that  the  bill  or  statement  may  be  cer- 
tified by  the  parties  as  well  as  settled.  The  provision 
of  the  statute  reads  as  follows: 

"If  such  judge  shall  die  or  remove  from  the  state 
while  in  office  or  afterward,  within  the  time  within 
which  a  bill  of  exceptions  or  statement  of  facts,  in  a 
cause  that  was  pending  or  tried  before  him,  might  be 
settled  and  certified  under  the  provisions  of  this  chap- 

6  Hallam  v.  Tillinghast,  19  Wash.  20,  52  Pac.  329. 
a  See  Van  Lehn  v.   Morse,   16  Wash.   219,  47  Pac.  435; 
Hallam  v.  TiUinghast,  19  Wash.  20,  52  Pac.  329. 


163  SETTLEMENT   OF   BILL   OR   STATEMENT.  §  89 

ter,  and  before  having  certified  such  bill  or  statement, 
such  bill  or  statement  may  be  settled  by  stipulation  of 
the  parties  with  the  same  effect  as  if  duly  settled  and 
certified  by  such  judge  while  still  in  office."  7 

In  regard  to  this  provision  of  the  statute,  it  may  be 
said  that  in  view  of  the  plain  distinction  which  has 
just  been  shown  to  exist  between  the  settlement  of  a 
bill  or  statement,  and  its  certification,  it  is  quite  ap- 
parent that  the  provision  is  unconstitutional  in  so  far 
as  it  attempts  to  give  to  the  settlement  of  the  bill  or 
statement  by  stipulation  of  the  parties  the  legal  effect 
of  a  settlement  and  certification  by  the  judge;  for  it 
thus  attempts  to  confer  upon  the  parties  themselves 
the  judicial  function  of  the  judge. 

A  preceding  portion  of  this  section  of  the  statute  has 
already  been  held  to  be  unconstitutional,  for  the  reason 
that  it  attempts  to  impose  the  power  and  duty  of  set- 
tling and  certifying,  the  proposed  bill  or  otatement 
upon  one  whose  judicial  powers  have  terminated.8 

And  it  is  plain  that  this  provision  also  is  unconsti- 
tutional in  so  far  as  it  attempts  to  confer  upon  the 
parties  themselves  the  judicial  power  of  certifying  the 
proposed  bill  or  statement,  by  giving  to  their  settle- 
ment the  legal  effect  of  a  settlement  and  certification 
by  the  judge;  for  the  certification,  as  has  been  already 
shown,  involves  the  exercise  of  judicial  functions. 

In  so  far  as  the  statute  confers  upon  the  parties  the 
mere  power  of  settling  the  bill  or  statement  under  such 
circumstances,  leaving  the  certification  to  the  judge,  it 
is  unobjectionable;  and  hence  a  settlement  by  the  stip- 
ulation of  the  parties  under  such  circumstances  may  be 
mentioned  as  another  instance  of  a  settlement  of  the 

7  Rera.  &  Bal.  Code,  §  392.     See  §  13,  supra. 

•  See  Hallam  v.  Tillinghast,  19  Wash.  20,  52  Pac.  329. 


§  89       BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OP  FACTS.        164 

proposed  bill  or  statement  by  the  express  agreement  of 
the  parties. 

It  follows  from  what  has  been  said  that  the  statu- 
tory regulations  and  also  the  rules  of  the  supreme  court 
relating  to  the  subject  of  bills  of  exceptions  and  state- 
ments of  facts  are  mandatory,  and  not  directory, 
though  occasionally  certain  requirements,  as  will  be 
hereinafter  noted,  may  be  waived  by  the  acts  of  the 
parties." 

Finally,  it  appears  that  mandamus,  whose  usual  office 
it  is  to  compel  the  performance  of  merely  ministerial 
duties,  is  the  proper  remedy  to  compel  the  perform- 
ance of  judicial  functions  also;  and  this  may  cre- 
ate in  the  minds  of  some  a  doubt  as  to  the  correctness 
of  the  ruling  that  the  certification  of  the  bill  or  state- 
ment is  a  judicial  act.  But  as  to  the  correctness  of 
this  ruling  there  can  be  but  little  doubt  after  mature 
consideration.  And  if  it  be  objected  that  the  nature 
of  mandamus  has  thus  been  changed,  the  answer  is 
that  the  nature  of  mandamus  depends  upon  the  partic- 
ular provisions  of  the  statutes  to  which  it  owes  its 
creation  or  which  provides  for  its  use ;  and  that  in  this 
particular  instance,  its  scope  has  been  so  broadened 
that  it  may  now  be  resorted  to  not  only  as  an  appro- 
priate method  of  compelling  the  performance  of  min- 
isterial duties,  but  also  as  a  substitute  for  an  appeal 
which  is  considered  inadequate.10 

•  Of  the  numerous  cases  sustaining  this  view,  see  the  follow- 
ing: State  v.  Seaton,  26  Wash.  305,  66  Pac.  397;  Jones  v. 
Herrick,  33  Wash.  197,  74  Pac.  332 ;  State  v.  Aschenbrenner, 
45  Wash.  125,  87  Pac.  1118 ;  Schell  v.  Walla  Walla,  44  Wash. 
43,  86  Pac.  1114 ;  Smith  v.  Glenn,  40  Wash.  262,  82  Pac.  605 ; 
Medcalf  v.  Bush,  4  Wash.  386,  30  Pac.  325. 

10  That  the  ordinary  remedy  of  mandamus  in  this  state  is 
quite  different  in  its  nature  from  the  original  and  usual  con- 
ception of  mandamus,  see  State  ex  rel.  Brown  v.  McQuade,  36 


165  SETTLEMENT   OP  BILL   OR   STATEMENT.  §  90 

To  the  foregoing  observations  regarding  the  distinc- 
tion between  the  settlement  and  the  certification  of  the 
proposed  bill  or  statement,  the  following  observations 
will  be  added  for  the  purpose  of  showing  that  the  set- 
tlement of  the  proposed  bill  or  statement  is  most  log- 
ically considered  in  connection  with  the  certification; 
and  while  added  for  this  particular  purpose,  they  may 
incidentally  further  clarify  this  intricate  subject. 

§  90.  The  Propriety  of  Considering  the  Settlement 
of  the  Bill  or  Statement  in  Connection  With  the  Cer- 
tification.— Since  the  certification  is  a  judicial  act  in- 
volving the  application  of  statutory  regulations  and  the 
rules  of  the  supreme  court  for  the  purpose  of  determin- 
ing whether  the  proposed  bill  or  statement  is,  in  all 
respects,  a  "proper"  bill  or  statement,  and  therefore 
worthy  of  the  consideration  of  the  supreme  court,  it 
follows  that  upon  the  presentation  of  the  proposed  bill 
or  statement  to  the  judge  for  certification,  it  becomes 
the  duty  of  the  judge  to  determine  the  following  ques- 
tions of  law:  1.  The  legal  effect  of  any  settlement 
of  the  proposed  bill  or  statement  by  the  parties;  that 
is,  to  determine  whether  the  mere  ministerial  act  of 
collecting  and  agreeing,  expressly  or  impliedly,  upon 
the  correctness  of  the  contents  of  the  proposed  bill 
or  statement,  shall  have  any  effect  as  a  matter  of  law, 
and  therefore  to  determine  whether,  as  a  matter  of  law, 
there  has  been  a  settlement  by  the  parties,  regardless 
of  what  ostensibly  appears  to  be  the  case,  for  the  pro- 
posed bill  or  statement,  though  agreed  upon  by  the 
parties  as  an  accurate  embodiment  of  all  material  facts, 
matters  and  proceedings  occurring  in  the  cause  and  not 

Wash.  579,  79  Pac.  207 ;  State  ex  rel.  Plaisie  v.  Cole,  40  Wash. 
474,  82  Pac.  749 ;  State  ex  rel.  Ide  v.  Coon,  40  Wash.  682,  82 
Pac.  993. 


§  90       BILLS  OP   EXCEPTIONS   AND   STATEMENTS  OP   FACTS.        166 

already  a  part  of  the  record,  may  not  have  been  filed 
and  served  within  the  time  prescribed  by  statute,  or 
the  service  may  have  preceded  the  filing,  or  the  appeal 
itself  may  not  have  been  taken  within  the  time  pre- 
scribed by  statute,  or  other  mandatory  requirements 
may  have  been  disregarded,  in  any  of  which  cases  the 
proposed  bill  or  statement  would  not  have  any  legal 
effect.  2.  If  it  is  determined  by  the  judge  as  a  matter 
of  law  that  there  has  been  a  settlement  by  the  parties, 
it  is  next  the  duty  of  the  judge  to  determine  the  extent 
of  the  settlement,  that  is,  what  has,  as  a  matter  of  law, 
been  settled  or  agreed  upon  by  the  parties,  regardless 
of  what  ostensibly  appears  to  be  the  case,  for  pro- 
posed amendments,  for  instance,  may  have  no  legal 
effect  whatever,  even  though  accepted,  for  the  reason 
that  they  were  not  filed  and  served  within  the  time 
prescribed  by  statute,  in  which  event  the  settlement  of 
the  parties  would  be  confined,  as  a  matter  of  law,  to 
the  contents  of  the  bill  or  statement  as  originally  pro- 
posed, and  would  become  a  settlement  by  implied 
agreement.  3.  But  if  it  appears  to  the  judge  that 
there  has  not  been  a  settlement  by  the  parties,  it  be- 
comes the  duty  of  the  judge  to  determine  next  as  a 
matter  of  law,  whether  the  proposed  bill  or  statement 
may  be  settled  by  himself,  and  if  so,  when;  for  the  bill 
or  statement  as  proposed  may  have  no  legal  effect,  as 
where,  for  instance,  the  service  precedes  the  filing,  in 
which  event  the  proposed  bill  or  statement  may  neither 
be  settled  nor  certified  by  the  judge;  or  the  judge  may 
not  have  the  right  to  exercise  his  jurisdiction  in  the 
matter  of  settlement  and  certification  until  such  juris- 
diction shall  have  been  properly  invoked,  as  where, 
for  instance,  the  notice  of  settlement  has  not  been 
given,  or  is  legally  insufficient,  and  the  defect  has 
not  been  waived ;  in  which  event  the  time  of  the  settle- 


167  SETTLEMENT   OF  BILL   OR   STATEMENT.  §  90 

ment  and  certification  must  be  postponed,  as  a  matter 
of  law,  until  a  proper  notice  shall  have  been  given. 

From  all  of  which  it  clearly  appears  that  though 
the  settlement  itself  is  a  mere  ministerial  act,  it  is  a 
matter  of  law  for  the  judge  to  determine  before  cer- 
tification whether  the  proposed  bill  or  statement  has 
been  duly  settled.  When,  therefore,  the  proposed  bill 
or  statement  has  been  settled  by  agreement  of  the 
parties,  express  or  implied,  the  form  of  the  certificate 
prescribed  by  the  statute  is  accordingly  such  as  will 
show  the  fact.  The  agreement  of  the  parties  evidences 
the  fact  merely  that  the  bill  or  statement  is  correct 
only  in  so  far  as  its  contents  are  concerned.  The  cer- 
tificate of  the  judge  is  evidence  of  the  fact  that  the 
bill  or  statement  has  been  duly  settled;  that  is,  that  the 
agreement  of  the  parties,  express  or  implied,  has  been 
legally  made;  in  other  words,  that  the  proposed  bill 
or  statement  has  been  legally  settled.  The  evidence  of 
a  settlement  by  the  parties  is  incomplete  and  insuffi- 
cient without  a  certification. 

The  distinction  between  a  settlement  and  a  certifica- 
tion is  well  illustrated  by  an  early  case  wherein  it 
appears  that  a  statement  of  facts  had  been  agreed 
upon,  and  regularly  signed  by  the  attorneys  of  both 
parties  to  the  action,  and  certified  by  the  judge;  and 
having  been  subsequently  lost,  a  similar  statement  was, 
by  order  of  the  court,  substituted  for  the  lost  statement. 

The  settlement  of  the  statement,  that  is,  the  correct- 
ness of  its  contents,  was  evidenced  by  the  attorneys, 
while  the  certificate  of  the  judge  evidenced  the  fact 
that  the  statement  was,  in  all  other  respects,  a  proper 
statement.11 

In  one  early  case  the  lower  court  interfered  with 
the  settlement  of  the  parties  by  inserting  in  the  bill 

11  Squire  v.  Greer,  2  Wash.  209,  26  Pac.  222. 


§  90       BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OP  FACTS.       168 

or  statement,  at  the  time  of  the  certification,  matters 
which  had  not  been  agreed  upon;  but  the  supreme 
court  excused  the  action  of  the  lower  court,  for  the 
reason  that  the  matters  inserted  were  wholly  irrele- 
vant, and  could  not  in  any  manner  affect  the  rights 
of  the  complaining  party.12 

In  another  early  case  it  was  held  that  a  settlement 
by  the  parties  could  only  be  evidenced  by  a  written 
stipulation  duly  filed.13 

But  these  are  exceptional  and  isolated  cases  which 
are  no  longer  recognized  as  authority,  and  are  men- 
tioned merely  because  they  are  related  to  the  subject 
under  discussion. 

And  finally,  since  the  settlement  of  the  proposed 
bill  or  statement  by  the  judge,  as  well  as  the  fact 
that  it  has  been  duly  settled  and  certified  by  him, 
can  only  be  known  by  his  certificate,  it  follows  that 
the  settlement  (which  is,  as  must  now  clearly  appear, 
the  mere  ministerial  act  of  collecting  the  contents  of 
the  proposed  bill  or  statement)  is  most  logically  con- 
sidered in  connection  with  the  certification — to  the 
consideration  of  which  we  will  now  proceed. 

12  See  Doyle  v.  McLeod,  4  Wash.  732,  31  Pac.  96. 

13  State  ex  rel.  Smith  v.  Parker,  9  Wash.  653,  38  Pac.  156. 


169  CERTIFICATION  OF  BILL  OB  STATEMENT. 


CHAPTER  VIII. 
THE  CERTIFICATION  OF  THE  BILL  OR  STATEMENT. 

§     91.     Divisions  of  the  Subject. 

§     92.    When  Notice  of  the  Settlement  and  Certification  is 

not  Required. 
§     93.    When  Notice  of  the  Settlement  and  Certification  is 

Necessary. 

§     94.    When  the  Notice  may  be  Given. 
§     95.     Who  may  Give  the  Notice. 
§     96.     Upon  Whom  the  Notice  must  be  Served. 
§     97.     The  Methods  of  Serving  the  Notice. 
§     98.     Proof  of  Service  of  the  Notice. 
§     99.     What  the  Notice  must  Contain. 
§  100.    The  Judge  to  Whom  the  Application  may  be  Made, 

and,  Therefore,  the  Judge  Whom  the  Notice  may 

Specify. 
§  101.    What  Notice  must  be  Given  of  the  Hearing  of  the 

Application    to    Settle    and    Certify    the    Bill    or 

Statement. 
§  102.     The   Method  of   Computing   the   Time    Which   the 

Notice  must  Give. 
§  103.     How  the  Time  of  the  Hearing  of  the  Application 

may  be  Postponed. 
§  104.     The  Place  Where  the  Hearing  may  be  Held,  and, 

Therefore,  the  Place  Which  the  Notice  may  Specify. 
§  105.     How  the  Place  of  the  Hearing  may  be  Changed. 
§  106.     When  a  New  Notice  must  be  Given. 
§  107.     When  the  Certification  may  be  Made. 
§  108.     Where  the  Certification  may  be  Made. 
§  109.     By  Whom  the  Certification  may  be  Made. 
§  110.     The  Number  of  Bills  of  Exceptions  and  Statements 

of  Facts  Which  may  be  Certified. 
§  111.     The  Meaning  of  the  Phrase  "Final  Judgment  in  the 

Cause"  When  Employed  With  Reference  to  the 


§  91       BILLS   OP   EXCEPTIONS  AND   STATEMENTS   OF   FACTS.       170 

Number  of  Bills  of  Exceptions  and  Statements  of 
Facts  "Which  may  be  Certified. 

§  112.     The  Form  of  the  Certificate. 

§  113.  Whether  the  Prescribed  Form  of  the  Certificate  may 
be  Changed  or  Varied  for  Any  Purpose  Whatever. 

§  114.  When  the  Judge  may  Correct  or  Supplement  His 
Certificate. 

§  115.  What  is  Meant  by  the  Correction  or  Supplementing 
of  the  Certificate. 

§  116.  Whether  Supplemental  Bills  of  Exceptions  or  State- 
ments of  Facts  are  Permitted. 

§  117.  The  Remedies  to  Which  a  Complaining  Party  may 
Resort. 

§  118.     The  Remedy  of  Mandamus. 

§  119.     The  Remedy  of  Prohibition. 

§  120.  Motions  Made  to  the  Supreme  Court  in  the  First 
Instance,  and  Based  upon  Various  Grounds,  to 
Strike  the  Bill  or  Statement  from  the  Cause. 

§  91.  Divisions  of  the  Subject. — The  certification 
of  the  bill  or  statement  may  be  defined  to  be  a  duly 
authenticated  determination  that  the  bill  or  state- 
ment has  been  properly  prepared,  regularly  proposed 
and  duly  settled.  The  preparation  and  proposal, of 
the  bill  or  statement  have  already  been  considered; 
and  it  now  remains  to  consider  the  settlement  and 
certification.  The  subject  will  be  treated  as  follows: 

(a)  When  notice  of  the  settlement  and  certification 
is  not  required. 

(b)  When  notice  of  the  settlement  and  certification 
is  necessary. 

(c)  When  the  notice  may  be  given. 

(d)  Who  may  give  the  notice. 

(e)  Upon  whom  the  notice  must  be  served. 

(f)  The  methods   of  serving  the  notice. 

(g)  Proof  of  service  of  the  notice, 
(h)  What  the  notice  must  contain. 


171  CERTIFICATION   OF   BILL   OB   STATEMENT.  §  91 

(i)  The  judge  to  whom  the  application  may  be 
made;  and,  therefore,  the  judge  whom  the  notice  may 
specify. 

(j)  What  notice  must  be  given  of  the  hearing  of 
the  application  to  settle  and  certify  the  bill  or  state- 
ment. 

(k)  The  method  of  computing  the  time  which  the 
notice  must  give. 

(1)  How  the  time  of  the  hearing  of  the  application 
may  be  postponed. 

(m)  The  place  where  the  hearing  may  be  held;  and 
therefore,  the  place  which  the  notice  may  specify. 

(n)  How  the  place  of  the  hearing  may  be  changed. 

(o)  When  a  new  notice  must  be   given. 

(p)  When  the  certification  may  be  made. 

(q)  Where  the  certification  may  be  made. 

(r)  By  whom  the  certification  may  be  made. 

(s)  The  number  of  bills  of  exceptions  and  state- 
ments of  facts  which  may  be  certified. 

(t)  The  meaning  of  the  phrase  "final  judgment  in 
the  cause"  when  employed  with  reference  to  the  num- 
ber of  bills  of  exceptions  and  statements  of  facts  which 
may  be  certified. 

(u)  The  form  of  the  certificate. 

(v)  Whether  the  prescribed  form  of  the  certificate 
may  be  changed  or  varied  for  any  purpose  whatever. 

(w)  When  the  judge  may  correct  or  supplement 
his  certificate. 

(x)  What  is  meant  by  the  correction  or  supplement- 
ing of  the  certificate. 

(y)  Whether  supplemental  bills  of  exceptions  or 
statements  of  facts  are  permitted. 

(z)  The  remedies  to  which  a  complaining  party  may 
resort. 


§§  92,  93     BILLS  OP  EXCEPTIONS  AND  STATEMENTS  OF  FACTS.     172 

§  92.  When  Notice  of  the  Settlement  and  Certifica- 
tion is  not  Required. — Notice  of  the  settlement  and 
certification  of  the  bill  or  statement  is  not  required 
when  the  settlement  has  been  effected  by  the  agree- 
ment, express  or  implied,  of  the  parties.1 

§  93.  When  Notice  of  the  Settlement  and  Certifica- 
tion is  Necessary. — Notice  of  the  application  for  the 
settlement  and  certification  of  the  proposed  bill  or 
statement  is  necessary,  unless  waived,  when  a  settle- 
ment has  not  been  effected  by  the  agreement,  express 
or  implied,  of  the  parties.  Thus,  where  proposed 
amendments  have  not  been  accepted,  notice  of  the  ap- 
plication for  the  settlement  and  certification  of  the 
proposed  bill  or  statement  is  necessary;  and,  unless 
notice  has  been  waived,  a  proposed  bill  or  statement 
which  has  been  settled  and  certified  without  notice 
is  not  duly  settled  and  certified,  and  will  therefore  be 
stricken  from  the  cause  or  disregarded.2 

1  Bern.  &  Bal.  Code,  §  389.     See  §  10,  supra;  Bruce  v.  Foley, 
18  Wash.  96,  50  Pac.  935 ;  State  ex  rel.  Hersner  v.  Arthur,  7 
Wash.  358,  35  Pac.  120;  Home  Savings  &  Loan  Assn.  v.  Burton, 
20  Wash.  688,  56  Pac.  940;  Maney  v.  Hart,  11  Wash.  67,  39 
Pac.  268;  Hansen  v.  Nilson,  17  Wash.   606,   50  Pac.  511; 
O'Neile  v.  Ternes,  32  Wash.  528,  73  Pac.  692;  State  ex  rel. 
Fetterley  v.    Griffin,    32   Wash.    67,   72   Pac.    1030;   Downs 
Farmers'  Warehouse  Assn.  v.  Pioneer  Mutual  Ins.  Assn.,  41 
Wash.  372,  83  Pac.  423.     See,  also,  §§  72,  87,  supra;  Sadler  v. 
Niesz,  5  Wash.  182,  31  Pac.  630,  1030;  Cogswell  v.  West  Street 
&  North  End  Electric  By.  Co.,  5  Wash.  46,  31  Pac.  411.     See, 
also,  Stelter  v.  Fowler,  62  Wash.  345,  113  Pac.  1096,  114  Pac. 
879. 

2  Cuschner  v.  Longbehn,  44  Wash.  546,  87  Pac.  817;  Shorno 
v.  Doak,  45  Wash.  613,  88  Pac.  1113 ;  State  v.  Howard,  15 
Wash.  425,  46  Pac.  650. 


173  CERTIFICATION   OF   BILL   OR   STATEMENT.  §  94 

The  rule  was  the  same  under  former  statutes.3 
But  notice  of  the  application  for  the  settlement  and 
certification  of  the  proposed  bill  or  statement  may  be 
waived;  as,  for  instance,  where  it  appears  that  the 
parties  were  present  at  the  hearing  of  the  application.4 
The  notice  of  the  application  for  the  settlement  and 
certification  of  the  proposed  bill  or  statement  might 
have  been  likewise  waived  under  former  statutes.5 

§  94.  When  the  Notice  may  be  Given. — The  stat- 
ute fixes  no  time  within  which  the  notice  of  the  ap- 
plication for  the  settlement  and  certification  of  the 
proposed  bill  or  statement  must  be  given,  and  there- 
fore must  be  understood  as  contemplating  that  the 
notice  may  be  given  within  a  reasonable  time  after 
the  proposal  of  the  amendments  which  are  not  ac- 
cepted. What  is  a  reasonable  time  will,  of  course, 
depend  upon  the  circumstances  of  each  particular 
case;  but  where  it  plainly  appears  that  the  appeal  has 
been  diligently  prosecuted,  and  that  there  is  no  in- 
tention of  abandoning  it,  a  notice  given  in  time  to 
enable  the  proposed  bill  or  statement  to  be  settled  and 
certified  and  filed  in  the  supreme  court  before  or  at 
the  time  of  the  hearing  of  the  cause  on  appeal  is  not 
too  late.6 

8  Penter  v.  Staight  and  Beavers,  1  Wash.  365,  25  Pac.  469 ; 
Mooney  v.  State,  2  Wash.  487,  28  Pac.  363 ;  State  v.  Hinehey, 
5  Wash.  326,  31  Pac.  870;  Ward  v.  Tucker,  7  Wash.  399,  35 
Pac.  126,  1086;  and  on  rehearing,  Emigh  v.  State  Ins.  Co.,  3 
Wash.  122,  27  Pac.  1063 ;  Caton  v.  Switzler,  3  Wash.  Ter.  242, 
13  Pac.  712 ;  United  States  v.  Lone  Fisherman,  3  Wash.  Ter. 
316,  13  Pac.  617. 

4  See  Dodds  v.  Gregson,  35  Wash.  402,  77  Pac.  791. 

6  Dittenhoefer  v.  Clothing  Co.,  4  Wash.  519,  30  Pac.  660. 

•  Rera.  &  Bal.  Code,  §§  389,  1729.  See  §§  10,  21,  supra; 
Floding  v.  Denholm,  40  Wash.  463,  82  Pac.  738;  Prospectors' 


§  94       BILLS   OF   EXCEPTIONS   AND   STATEMENTS  OF   FACTS.       174 

Under  former  statutes  the  rule  was  different,  for 
the  statutes  fixed  a  time  within  which  the  notice  of  the 
settlement  and  certification  must  be  given,  and  such 
time  could  not  be  extended. 

If  the  notice  was  not  given  within  the  time  pre- 
scribed by  the  statute,  a  bill  or  statement  settled  and 
certified  in  pursuance  of  such  a  notice  was  settled 
and  certified  out  of  time,  and  would  be  stricken  from 
the  cause  or  disregarded.7 

Where  the  judgment  was  rendered  at  chambers,  the 
time  did  not  begin  to  run  until  service  of  notice  of  the 
rendition  of  the  judgment.8 

Under  the  former  practice  an  objection  to  the  bill  or 
statement  upon  the  ground  that  if  was  not  properly 
settled  might  be  waived  by  a  failure  on  the  part  of 
the  one  objecting  to  file  a  motion  to  strike  the  bill  or 
statement,  as  required  by  the  rules  of  court.9 

The  practice  of  serving  the  notice  at  the  time  of  the 
service  of  the  original  bill  or  statement  is  quite  com- 
mon; but  it  has  no  statutory  sanction.  The  statute 
contemplates  that  the  notice  will  not  be  given  prior 
to  the  service  of  the  proposed  amendments,  for  it  ex- 
Development  Co.  v.  Brook,  31  Wash.  187,  71  Pac.  774;  Dodds 
v.  Gregson,  35  Wash.  402,  77  Pac.  791.  See,  also,  State  ex 
rel.  Dutch  Miller  Mining  &  Smelting  Co.  v.  Superior  Court, 
30  Wash.  43 ,  70  Pac.  102. 

7  Snyder  v.  Kelso,  3  Wash.  181,  28  Pac.  335 ;  Enos  v.  Wil- 
cox,  3  Wash.  44,  28  Pac.  364 ;  Cadwell  v.  First  National  Bank, 
3  Wash.  188,  28  Pac.  365 ;  State  v.  Hoyt,  4  Wash.  818,  30  Pac. 
1060;  State  v.  Picani,  5  Wash.  343,  31  Pac.  878;  Bently  v. 
Port  Townsend  Hotel  &  Improvement  Co.,  6  Wash.  296,  32 
Pac.  1072 ;  Oliver  v.  Lewis,  9  Wash.  572,  38  Pac.  139 ;  Kenyon 
v.  Knipe,  3  Wash.  Ter.  243,  13  Pac.  759. 

8  Kennedy  -v.  Derrickson,  5  Wash.  289,  31  Pac.  766. 
•  Cowie  v.  Ahrenstedt,  1  Wash.  416,  25  Pac.  458. 


175  CERTIFICATION   OF   BILL   OR   STATEMENT.  §  94 

pressly  provides  that  "either  party  may  then  [that  is, 
after  the  filing  and  service  of  the  proposed  amend- 
ments] serve  upon  the  other  a  written  notice  that  he 
will  apply  to  the  judge  of  the  court  before  whom  the 
cause  is  pending  or  was  tried,  at  a  time  and  place 
specified,  the  time  to  be  not  less  than  three  nor  more 
than  ten  days  after  service  of  the  notice,  to  settle  and 
certify  the  bill  or  statement;  and  at  such  time  and 
place,  or  at  any  other  time  or  place  specified  in  an 
adjournment  made  by  order  or  stipulation,  the  judge 
shall  settle  and  certify  the  bill  or  statement. ' ' 10 

The  statute  therefore  impliedly  forbids  the  giving 
of  the  notice  at  the  time  of  the  service  of  the  original 
bill  or  statement;  for  the  notice  must  fix  a  time  not 
less  than  three  nor  more  than  ten  days  after  service 
of  the  notice,  and  this  will  necessarily  fall  within  the 
period  allowed  for  the  proposal  of  amendments,  which, 
of  course,  will  not  be  allowed;  for,  in  the  absence  of 
an  agreement,  the  bill  or  statement  cannot  be  certified 
within  that  period.11 

If  the  notice  fixes  the  time  for  the  hearing  at  a  date 
which  is  subsequent  to  the  time  limited  by  the  statute 
for  the  proposal  of  amendments,  it  is  not  a  proper 
notice,  and  is  insufficient  to  authorize  a  settlement  and 
certification  of  the  bill  or  statement  in  the  absence  of 
a  waiver  of  the  defect.  Former  statutes,  similar  in 
this  respect  to  the  present  statutes,  were  so  construed ; 
and  no  doubt  the  present  statutes  would  be  likewise 
construed.12 

10  Rem.  &  Bal.  Code,  §  389.     See  §  10,  supra. 

11  See  Costello  v.  Drainage  District  No.  1,  King  County,  44 
Wash.  344,  87  Pac.  513.     See,  also,  Oliver  v.  Lewis,  9  Wash. 
572,  38  Pac.  139. 

12  See  Boyer  v.  Boyer,  4  Wash.  80,  29  Pac.  981. 


§  94       BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OP   FACTS.        176 

Such  defective  notices  may,  as  shown  by  the  cases 
cited,  be  waived  by  a  voluntary  appearance  and  par- 
ticipation in  the  settlement,  or  by  agreement;  but  if 
not  waived,  they  are  clearly  not  sufficient.18 

Since  the  statute  provides  that  "a  proposed  bill  of 
exceptions  or  statement  of  facts  must  be  filed  and 
served  either  before  or  within  thirty  days  after  the 
time  begins  to  run  within  which  an  appeal  may  be 
taken  from  the  final  judgment  in  the  cause,  or  (as  the 
case  may  be)  from  an  order  with  a  view  to  an  appeal 
from  which  the  bill  or  statement  is  proposed,"  it  fol- 
lows that  the  notice  of  the  application  for  the  settle- 
ment and  certification  of  the  proposed  bill  or  statement 
may  be  given  prior  to  the  entry  of  the  judgment  or 
order  appealed  from,  even  though  the  statement  be  a 
statement  of  facts,  where  the  time  designated  in  the 
notice  is  subsequent  to  the  date  of  the  entry  of  the 
judgment  or  order,  and  the  statement  is  settled  and 
certified  after  such  entry.14 

A  bill  of  exceptions  may,  of  course,  be  settled  and 
certified  either  before  or  after  the  entry  of  the  judg- 
ment or  order  appealed  from.15 

But  a  statement  of  facts  can  only  be  settled  and 
certified  after  the  entry  of  the  judgment  or  order  ap- 
pealed from.1' 

13  Boyer  v.  Boyer,  4  Wash.  80,  29  Pac.  981;  Costello  v. 
Drainage  District  No.  1,  King  County,  44  Wash.  344,  87  Pac. 
513. 

14  Rem.  &  Bal.  Code,  §  393.     See  §  14,  supra;  Phillips  v. 
Port  Townsend  Lodge,  No.  6,  F.  &  A.  M.,  8  Wash.  529,  36 
Pac.  476. 

15  Rem.  &  Bal.  Code,  §  388.     See  §  9,  supra. 

16  Rem.  &  Bal.  Code,  §  388.     See  §  9,  supra;  Bartlett  v. 
Reichenecker,  6  Wash.  168,  32  Pac.  1062. 


177  CERTIFICATION   OF   BILL   OB   STATEMENT.         §§  95-97 

The  notice  of  the  application  for  the  settlement  and 
certification  of  the  proposed  bill  or  statement  may  also 
be  given  before  the  notice  of  appeal.17 

§  95.  Who  may  Give  the  Notice. — The  notice  may 
be  given  by  either  party;  and  by  the  phrase  "either 
party"  is  meant  either  the  party  proposing  the  origi- 
nal bill  or  statement,  or  the  party  by  whom  the  amend- 
ments have  been  proposed.18 

§  96.  Upon  Whom  the  Notice  must  be  Served. — • 
The  provision  of  the  statute  is  that  ' '  either  party  may 
then  serve  upon  the  other";  and  by  the  word  "other" 
is  clearly  meant  the  party  proposing  the  original  bill 
or  statement,  when  the  notice  is  served  by  the  party 
who  proposed  the  amendments;  and  when  the  notice 
is  served  by  the  party  by  whom  the  original  bill  or 
statement  was  proposed,  the  word  "other"  means  the 
party  by  whom  the  amendments  were  proposed.19 

Service  upon  attorneys  of  record  is  sufficient  in  the 
absence  of  proof  of  substitution.20 

§  97.  The  Methods  of  Serving  the  Notice.— The 
rules  which  govern  the  various  methods  of  serving 
the  original  bill  or  statement  are  equally  applicable 
to  the  service  of  the  notice  of  the  application  for  the 
settlement  and  certification  of  the  bill  or  statement.21 

17  King  County  v.  Hill,  1  Wash.  63,  23  Pac.  926.     The  two 
cases  last  above  cited  were,  it  is  true,  decided  under  former 
statutes;  but  they  are  clearly  authority  under  the  present 
statutes. 

18  Rem.  &  Bal.  Code,  §  389.     See  §  10,  supra. 

19  Rem.  &  Bal.  Code,  §  389.     See  §  10,  supra. 

20  Tacoma  Mill  Co.  v.  Sherwood,  11  Wash.  492,  39  Pac.  977. 

21  See  §  57,  supra,  and  cases  cited. 

12 


§§98-100     BILLS  OF  EXCEPTIONS  AND  STATEMENTS  OF  FACTS.     178 

§  98.  Proof  of  Service  of  the  Notice. — The  rules 
which  govern  the  proof  of  service  of  the  original  bill 
or  statement  are  equally  applicable  to  the  proof  of 
service  of  the  notice  of  the  application  for  the  settle- 
ment and  certification  of  the  bill  or  statement.22 

Proof  of  service  cannot  be  made  by  affidavits  filed 
in  the  supreme  court.23 

§  99.  What  the  Notice  must  Contain. — The  statute 
prescribes  that  the  notice  shall  specify:  1.  The  judge 
of  the  court  before  whom  the  cause  is  pending  or  was 
tried;  2.  The  time  of  the  hearing  of  the  application 
for  the  settlement  and  certification;  3.  The  place  of 
the  hearing  of  the  application  for  the  settlement  and 
certification.  These  requirements  of  the  statute  will 
be  separately  considered  in  subsequent  sections  of  this 
work.2* 

§  100.  The  Judge  to  Whom  the  Application  may 
be  Made,  and,  Therefore,  the  Judge  Whom  the  Notice 
may  Specify. — The  statute  provides  that  the  notice 
must  designate  "the  judge  of  the  court  before  whom 
the  cause  is  pending  or  was  tried. ' ' 2* 

The  statute  also  provides  that  the  order  extending 
the  time  for  filing  and  serving  the  proposed  bill  or 
statement  may  be  made  by  ' '  the  court  or  judge  wherein 
or  before  whom  the  cause  is  pending  or  was  tried. ' ' 26 

Thus  it  is  seen  that  the  rule  relating  to  the  judge 
to  whom  the  application  for  the  settlement  and  cer- 
tification of  the  proposed  bill  or  statement  may  be 

22  See  §  59,  supra,  and  cases  cited. 

23  State  v.  Hinchey,  5  Wash.  326,  31  Pac.  870. 

24  See  §§  102,  104,  infra. 

25  Rem.  &  Bal.  Code,  §  389.     See  §  10,  supra. 

26  Bern.  &  Bal.  Code,  §  393.     See  §  14,  supra. 


179  CERTIFICATION   OF  BILL   OR   STATEMENT.  §  100 

made  is  the  same  as  the  rule  relating  to  the  judge  to 
whom  the  application  for  an  order  extending  the  time 
for  the  filing  and  service  of  the  proposed  bill  or  state- 
ment may  be  made. 

It  is  therefore  the  rule  that  any  judge  of  the  court 
wherein  the  cause  is  pending,  or  any  nonresident  judge, 
or  judge  pro  tempore,  before  whom  the  cause  was  tried, 
is  the  judge  to  whom  the  application  may  be  made; 
and,  therefore,  the  judge  whom  the  notice  may  specify. 

The  constitution  provides  that  "the  judge  of  any 
superior  court  may  hold  a  superior  court  in  any  county 
at  the  request  of  the  judge  of  the  superior  court 
thereof,  and  upon  the  request  of  the  governor  it  shall 
be  his  duty  to  do  so.  A  case  in  the  superior  court 
may  be  tried  by  a  judge  pro  tempore,  who  must  be  a 
member  of  the  bar,  agreed  upon  in  writing  by  the 
parties  litigant  or  their  attorneys  of  record,  approved 
by  the  court,  and  sworn  to  try  the  case. ' ' " 

A  cause  is  always  pending  in  the  court  of  the  res- 
ident judge  until  it  has  been  finally  determined  in  his 
court,  and  until  all  steps  necessary  to  the  completion 
of  the  proposed  bill  or  statement  have  been  taken ;  for 
by  express  provision  of  the  statutes  all  steps  and  pro- 
ceedings relating  to  the  proposed  bill  or  statement  are 
deemed  steps  and  proceedings  in  the  cause  itself,  rest- 
ing upon  the  jurisdiction  originally  acquired  by  the 
court  in  the  cause;  and,  notwithstanding  an  appeal, 
the  superior  court  shall  retain  jurisdiction  for  the  pur- 
pose of  settlement  and  certifying  of  bills  of  exceptions 
and  statements  of  facts,  and  for  all  purposes  in  so 
far  as  the  cause  is  not  affected  by  the  appeal.28 

27  Const.,  art.  4,  §  7. 

28  Rem.  &  Bal.  Code,  §§  393,  1731.     See  §§  14,  23,  supra. 


§  100      BILLS  OP   EXCEPTIONS   AND   STATEMENTS  OP   FACTS.      180 

It  follows,  therefore,  that  the  notice  may  specify  a 
resident  judge,  even  though  the  cause  was  tried  by  a 
nonresident  judge.29 

Where  there  are  two  or  more  judges  for  a  particular 
county,  each  of  the  judges  has  the  same  powers,  and 
all  causes  in  their  court  are  pending  before  them 
equally;  and  any  one. of  the  judges  may  therefore  be 
designated  in  the  notice  of  the  application  for  the 
settlement  and  certification  of  the  proposed  bill  or 
statement  in  a  cause  pending  in  the  court  of  such 
county,  whether  he  actually  tried  the  cause  or  not.30 

There  are  no  decisions  of  the  supreme  court  sup- 
porting the  author's  statement  that  a  notice  of  the 
application  for  the  settlement  and  certification  of  the 
proposed  bill  or  statement  may  properly  designate  a 
judge  pro  tempore  before  whom  a  cause  has  been  tried; 
but  it  is  clear  enough  that  none  are  necessary.  The 
legislature,  it  is  true,  cannot  delegate  judicial  powers.31 

But  while  the  legislature  cannot  delegate  judicial 
powers,  the  constitution  can;  and  the  judicial  powers 
of  a  judge  pro  tempore  are  constitutional.32 

In  an  early  case,  decided  under  former  statutes,  it 
was  held  that  a  notice  of  an  application  to  settle  and 
certify  a  statement  of  facts  which  failed  to  name  any 
place  where  such  statement  would  be  presented  for 
settlement,  and  named  a  judge  who  did  not  try  the  case 
as  the  person  before  whom  such  settlement  would  be 
had,  was  ineffectual  for  the  purpose  for  which  it  was 

29  See  State  ex  rel.  Bickford  v.  Benson,  21  Wash.  365,  58 
Pac.  217. 

80  See  Wallace  v.  Oceanic  Packing  Co.,  25  Wash.  143,  64 
Pac.  938. 

31  Hallam  v.  Tillinghast,  19  Wash.  20,  52  Pac.  329. 

82  Const,  art.  4,  §  7. 


181  CERTIFICATION   OF  BILL   OR  STATEMENT.  §  100 

given,  and  the  statement  was,  for  that  reason,  stricken 
from  the  cause.83 

But  the  statute  in  force  at  the  time  of  this  decision 
expressly  provided  that  the  notice  should  specify  * '  the 
court  or  judge  who  tried  the  cause  or  made  the  decision, 
order,  or  judgment  complained  o/,"  and  also  "a  place 
to  be  named  in  said  notice,  to  settle  and  certify  said 
statement  of  facts. ' '  ** 

The  decision  is,  therefore,  no  longer  authority  re- 
specting the  judge  to  whom  an  application  for  the 
settlement  and  certification  of  a  proposed  bill  or  state- 
ment may  be  made ;  and,  therefore,  the  judge  whom  the 
notice  may  specify. 

The  notice  should  designate  the  judge  as  the  judge 
before  whom  the  cause  is  pending,  or  as  the  judge 
before  whom  the  cause  was  tried,  as  the  case  may  be; 
but  such  a  defect  is  waived  by  a  voluntary  appearance 
and  participation  in  the  settlement,  especially  where 
it  also  appears  in  the  certificate  that  the  judge  desig- 
nated in  the  notice  is  the  proper  judge.35 

The  statement  in  the  above  case  was  sustained  upon 
the  theory  that  the  proposed  amendments  were  agreed 
to  "in  substance  and  effect"-,  but  it  would  have  been 
more  properly  sustained  upon  the  ground  that  the  de- 
fective notice  had  been  waived  by  a  voluntary  appear- 
ance and  participation  in  the  settlement;  for  the  pro- 
posed amendments  were  at  no  time  accepted  in  full, 
and  therefore  not  accepted,  as  the  decision  shows. 

33  Coats  v.  West  Coast  Fire  &  Marine  Ins.  Co.,  4  Wash.  375, 
30  Pac.  404,  850. 

84  2  Hill's  Annotated  Codes  and  Statutes  of  Washington, 
§  1422. 

35  See  Stelter  v.  Fowler,  62  Wash.  345,  113  Pac.  1096,  114 
Pac.  978. 


§  101      BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OF   FACTS.      182 

And  finally,  the  judge  designated  must  be  one  who 
will  be  a  judge  at  the  time  of  the  certification;  for  an 
ex-judge  has  not  the  judicial  power  to  certify  a  bill 
or  statement,  even  if  he  is  the  judge  who  tried  the 
cause." 

Therefore,  if  a  judge  is  one  who  will  not  be  a  judge 
at  the  time  of  the  certification,  the  notice  should  desig- 
nate a  judge  who  will  be,  or  else  designate  generally 
a  judge  of  the  court.37 

§  101.  What  Notice  must  be  Given  of  the  Hearing 
of  the  Application  to  Settle  and  Certify  the  Bill  or 
Statement. — The  statute  provides  that  the  notice  of 
the  application  for  the  settlement  and  certification  of 
the  proposed  bill  or  statement  must  designate  a  time 
which  will  not  be  less  than  three  days  nor  more  than 
ten  days  after  service  of  the  notice.88 

A  notice  which  gives  less  than  the  statutory  time  is 
insufficient;  and  if  the  defect  is  not  waived,  the  bill 
or  statement  will  be  stricken  or  disregarded  when  ob- 
jected to  for  that  reason.89 

The  notice  should  give  the  hour  of  the  day,  but  if 
fixed  by  stipulation,  neither  party  can  object  that  the 
time  was  not  fixed.40 

A  notice  served  on  July  26th  that  appellants  would 
apply  to  the  judge  who  tried  the  cause  on  the  second 
day  of  August  following  to  settle  and  certify  the  bill 
or  statement  is  a  sufficient  notice.41 

36  See  §  109,  supra,  and  cases  cited. 

87  See  Watt  v.  O'Brien,  6  Wash.  415,  33  Pac.  969. 

38  Bern.  &  Bal.  Code,  §  389.     See  §  10,  supra. 

39  See  Taylor  v.  Osburn,  1  Wash.  189,  22  Pac.  858 ;  Oliver 
v.  Lewis,  9  Wash.  572,  38  Pac.  139. 

40  Seattle  v.  Buzby,  2  Wash.  Ter.  25,  3  Pac.  180. 

*l  Wintermute  v.  Garner,  8  Wash.  585,  36  Pac.  490. 


183  CERTIFICATION   OF   BILL   OB   STATEMENT.  §  102 

But  this  defect  may  be  waived  by  voluntary  appear- 
ance and  participation  in  the  settlement.42 

A  notice  which  gives  more  time  than  is  allowed  by 
the  statute  is  also  insufficient;  and  if  the  defect  is  not 
waived,  the  bill  or  statement  will  be  stricken  or  dis- 
regarded when  objected  to  for  that  reason.43 

But  this  defect  may  also  be  waived  by  voluntary  ap- 
pearance and  participation  in  the  settlement.44 

The  notice  must  not  designate  a  nonjudicial  day;  for 
if  it  does,  and  the  defect  is  not  waived,  the  bill  or  state- 
ment will  be  stricken  or  disregarded  when  objected  to 
for  that  reason.  Thus,  it  has  been  held  that  a  notice 
which  designates  a  nonjudicial  day  is  void,  and  that 
an  order  of  the  judge  extending  the  time  for  the  hear- 
ing upon  the  ex  parte  application  of  appellants,  and 
without  notice  to,  or  appearance  by,  respondent,  was 
powerless  to  render  the  void  notice  effectual  for  any 
purpose.  The  court  said:  "A  notice  citing  a  respond- 
ent to  appear  and  participate  in  the  doing  of  an  act 
at  a  time  at  which  the  act  could  not  be  legally  done, 
is  manifestly  without  any  mandatory  or  coercive  force 
whatever,  and  may  be  wholly  ignored. ' ' 45 

§  102.  The  Method  of  Computing  the  Time  Which 
the  Notice  must  Give. — The  time  is  computed  by  ex- 
cluding the  first  day  and  including  the  last,  unless  the 
last  day  is  a  holiday  or  Sunday,  and  then  it  is  also 
excluded.46 

42  Dodds  v.  Gregson,  35  Wash.  402,  77  Pac.  791. 

43  Boyer  v.  Boyer,  4  Wash.  80,  29  Pac.  981. 

44  Boyer  v.  Boyer,  4  Wash.  80,  29  Pac.  981. 

46  Cadwell  v.  First  National  Bank,  3  Wash.  188,  28  Pac. 
365. 

46  Rem.  &  Bal.  Code,  §  150. 


§  102      BILLS   OF   EXCEPTIONS   AND   STATEMENTS   OF   FACTS.       184 

Thus,  when  the  notice  is  given  on  the  ninth  day  of  a 
month,  and  the  notice  states  that  the  application  will 
be  made  on  the  twelfth  day  of  the  same  month,  it  is 
sufficient;  and  an  intervening  Sunday  will  not  be  ex- 
cluded from  the  time.  A  Sunday  or  a  holiday  is  to  be 
excluded  by  the  party  who  draws  the  notice  when,  in 
computing  the  time,  he  finds  that  the  last  day  will  fall 
on  a  Sunday  or  holiday.47 

Thus  again,  under  former  statutes  which  required 
at  least  ten  days'  notice,  and  the  notice  of  settlement 
and  certification  was  given  on  the  twentieth  day  of 
May,  and  the  notice  stated  that  the  application  would 
be  made  on  the  thirty-first  day  of  the  same  month 
for  the  settlement  and  certification  of  the  bill  or  state- 
ment, the  thirtieth  day  of  the  month  being  a  legal 
holiday,  the  notice  was  held  sufficient.  In  this  case 
the  statute  which  prescribes  that  one  who  draws  a 
notice  must  exclude  a  holiday  or  Sunday  when,  in  com- 
puting the  time,  he  finds  that  the  last  day  will  fall 
thereon,  was  carefully  observed  and  followed.48 

The  statute  does  not  sanction  the  designation  of  a 
holiday  or  Sunday  as  a  day  on  which  any  act  may  be 
done;  and,  so  far  as  notices  are  concerned,  is  plainly 
not  intended  to  be  curative  in  its  nature,  but  is  in- 
tended to  furnish  a  method  of  computation  by  which 
the  designation  of  a  holiday  or  Sunday  may  be 
avoided.4' 

47  Martin  v.  Sunset  Telephone  &  Telegraph  Co.,  18  Wash. 
260,  51  Pac.  376. 

48  See  Tompson  v.  Huron  Lumber  Co.,  5  Wash.  527,  32  Pac. 
536.     See,  also,  Ledyard  v.  West  Street  &  North  End  Electric 
Ry.  Co.,  5  Wash.  64,  31  Pac.  417. 

49  See  Cadwell  v.  First  National  Bank,  3  Wash.  188,  28  Pac. 
365.    For  further  illustrations  of  the  method  of  computing 


185  CERTIFICATION   OF   BILL   OB   STATEMENT.  §  103 

§  103.  How  the  Time  of  the  Hearing  of  the  Ap- 
plication may  be  Postponed. — The  time  of  the  hearing 
of  the  application  may  be  postponed  either,  first,  by 
an  order  of  the  judge;  or,  secondly,  by  stipulation  of 
the  parties.  When  so  postponed,  further  notice  of  the 
application  is  not  necessary.50 

The  stipulation  of  the  parties  must  be  evidenced  by 
a  writing  duly  filed  in  the  cause,  unless  it  otherwise 
appears  of  record.51 

It  may,  no  doubt,  be  also  shown  by  the  bill  or  state- 
ment.52 

It  was  held  in  an  early  case  that  the  adjournment 
by  order  of  the  court  or  judge  may  be  established, 
prima  facie  at  least,  by  a  recital  in  the  certificate  to  the 
bill  or  statement  that  regular  notice  had  been  given 
of  the  settlement,  and  that  such  settlement  had  been 
by  him  adjourned  from  time  to  time  until  the  day  when 
it  was  finally  settled." 

Under  former  statutes  the  time  and  place  of  the  hear- 
ing could  be  changed  by  stipulation  of  the  parties ;  and 

time,  see  the  following  cases :  Wollin  v.  Smith,  27  Wash.  349, 
67  Pac.  561;  Delaski  v.  Northwestern  Improvement  Co.,  61 
Wash.  255,  112  Pac.  341 ;  State  ex  rel.  Bickford  v.  Benson,  21 
Wash.  365,  58  Pac.  217 ;  Bank  of  Shelton  v.  Willey,  7  Wash. 
535,  35  Pac.  411 ;  Spokane  Falls  v.  Browne,  3  Wash.  84,  27 
Pac.  1077 ;  Rogers  v.  Trumbull,  32  Wash.  211,  73  Pac.  381 ; 
Hewitt  v.  Boot,  31  Wash.  312,  71  Pac.  1021 ;  Kubillus  v.  Ewert, 
40  Wash.  38,  82  Pac.  147;  Spokane  &  Idaho  Lumber  Co.  v. 
Stanley,  25  Wash.  653,  66  Pac.  92 ;  Perkins  v.  Jennings,  27 
Wash.  145,  67  Pac.  590;  Scott  v.  Patterson,  1  Wash.  487,  20 
Pac.  593. 

80  Hem.  &  Bal.  Code,  §  389.     See  §  10,  supra. 

"  Humes  v.  Hillman,  39  Wash.  107,  80  Pac.  1104. 

62  See  Kane  v.  Kane,  35  Wash.  517,  77  Pac.  842. 

•«  See  Doyle  v.  McLeod,  4  Wash.  732,  31  Pac.  96. 


§  104      BILLS   OP  EXCEPTIONS   AND   STATEMENTS   OP  PACTS.      186 

where  an  attorney  appears  generally  for  all  the  de- 
fendants in  an  action,  his  stipulation  that  a  statement 
of  facts  might  be  settled  at  another  time  and  place 
than  named  in  the  notice  therefor  is  binding  on  all 
the  defendants,  though  the  record  also  shows  that  some 
of  them  were  represented  especially  by  other  at- 
torneys.64 

§  104.  The  Place  Where  the  Hearing  may  be  Held, 
and,  Therefore,  the  Place  Which  the  Notice  may 
Specify. — The  application  may,  with  consent  of  the 
parties,  be  heard  in  any  county  within  the  district  of 
the  judge  before  whom  the  cause  is  pending ;  but  with- 
out consent  of  the  parties  to  the  hearing  elsewhere, 
the  application  must  be  heard  within  the  particular 
county  wherein  the  cause  or  proceeding  is  pending.55 

Thus,  where  the  application  for  the  settlement  and 
certification  of  the  bill  or  statement  was  heard  outside 
of  the  county  wherein  the  cause  or  proceeding  was 
pending  without  consent  of  the  parties,  it  was  held,  in 
accordance  with  the  statutory  provisions,  that  the  hear- 
ing was  unauthorized,  and  the  bill  or  statement  was 
allowed  to  be  returned  to  the  proper  county  for  due 
settlement  and  certification.58 

The  consent  may  be  evidenced  either  by  the  stipula- 
tion of  the  parties  reduced  to  writing  and  duly  filed, 
or  such  consent  may,  no  doubt,  be  shown  in  the  pro- 
posed bill  or  statement.51 

54  Haas  v.  Gaddis,  1  Wash.  89,  23  Pac.  1010. 

55  Rem.  &  Bal.  Code,  §§  41,  42.     See  §§  32,  33,  supra. 

58  See  Prospectors'  Development  Co.  v.  Brook,  31  Wash. 
187,  71  Pac.  774. 

67  See  Humes  v.  Hillman,  39  Wash.  107,  80  Pac.  1104.  See, 
also,  Kane  v.  Kane,  35  Wash.  517,  77  Pac.  842. 


187  CERTIFICATION   OF   BILL   OB  STATEMENT.  §  101 

These  rules  are  applicable  to  the  place  of  all  hearings 
in  the  superior  courts.58 

But  the  application  cannot  be  heard  outside  of  the 
judicial  district  wherein  the  cause  is  pending,  even 
with  the  consent  of  the  parties.  The  statute  very 
clearly  limits  the  territory  within  which  the  hearing 
may  be  held,  even  with  consent  of  the  parties,  to  the 
judicial  district  wherein  the  cause  is  pending.59 

The  statute  provides  that  the  notice  of  the  applica- 
tion for  the  settlement  and  certification  of  the  bill  or 
statement  must  designate  the  place  of  the  hearing.60 

It  is  accordingly  held  that  a  notice  which  fails  to 
give  the  place  of  the  hearing  is  insufficient,  and  that 
the  bill  or  statement  will  be  stricken  or  disregarded  if 
the  defect  is  not  waived.81 

This  defect  may,  however,  be  waived  by  voluntary 
appearance  and  participation  in  the  settlement.62 

The  statement  in  the  above  case  was  sustained  upon 
the  theory  that  the  proposed  amendments  were  agreed 
to  "in  substance  and  effect,"  but  it  would  have  been 
more  properly  sustained  upon  the  ground  that  the  de- 
fective notice  had  been  waived  by  a  voluntary  appear- 
ance and  participation  in  the  settlement;  for  the  pro- 

58  See  Driscoll  v.  Dufur,  45  Wash.  494,  88  Pac.  929 ;  Shaw  v. 
Spencer,  57  Wash.  587,  107  Pac.  383.     See,  also,  State  ex  rel. 
Clark  v.  Neal,  19  Wash.  642,  54  Pac.  31. 

59  See  Prospectors'  Development  Co.  v.  Brook,  31  Wash. 
187,  71  Pac.  774. 

60  Rem.  &  Bal.  Code,  §  389.     See  §  10,  supra. 

61  American  Asphalt  Co.  v.  Gribble,  8  Wash.  255,  35  Pac. 
1098;  Merchants'  National  Bank  of  Seattle  v.  Ault,  14  Wash. 
701,  44  Pac.  129;  Kroenert  v.  Gustason,  19  Wash.  373,  53 
Pac.  340;  Coats  v.  West  Coast  Fire  &  Marine  Ins.   Co.,  4 
Wash.  375,  30  Pac.  404,  850. 

62  See  Stelter  v.  Fowler,  62  Wash.  345,  113  Pac.  1096,  114 
Pac.  879. 


§  105      BILLS   OF  EXCEPTIONS  AND   STATEMENTS   OF   FACTS.      188 

posed  amendments  were  at  no  time  accepted  in  full, 
as  the  decision  shows. 

In  counties  where  there  are  more  than  one  judge  and 
more  than  one  department,  it  is  the  usual  practice,  in 
addition  to  designating  the  courthouse  and  the  loca- 
tion thereof,  to  designate  the  particular  department; 
but  a  designation  of  the  "courthouse"  has  been  held 
to  be  a  sufficient  designation  of  the  place  of  the  hear- 
ing.63 

§  105.  How  the  Place  of  the  Hearing  may  be 
Changed. — The  statute  directly  relating  to  the  subject 
of  bills  of  exceptions  and  statements  of  facts  provides 
that  "at  such  time  and  place,  or  at  any  other  time  or 
place  specified  in  an  adjournment  made  by  order  or 
stipulation,  the  judge  shall  settle  and  certify  the  bill  or 
statement. ' '  •* 

But  a  later  statute  also  provides  as  follows: 
' '  Section  1.  Any  judge  of  the  superior  court  of  the 
state  of  Washington  shall  have  power,  in  any  county 
within  his  district:  (1)  To  sign  all  necessary  orders 
and  papers  in  probate  matters  pending  in  any  other 
county  in  his  district;  (2)  to  issue  restraining  orders, 
and  to  sign  the  necessary  orders  of  continuance  in  ac- 
tions or  proceedings  pending  in  any  other  county  in 
his  district;  (3)  to  decide  and  rule  upon  all  motions, 
demurrers,  issues  of  fact  or  other  matters  that  may 
have  been  submitted  to  him  in  any  other  county.  All 
such  rulings  and  decisions  shall  be  in  writing  and  shall 
be  filed  immediately  with  the  clerk  of  the  proper 
county:  Provided,  that  nothing  herein  contained  shall 

63  Littlejohn  v.  Miller,  5  Wash.  399,  31  Pac.  758. 
•*  Hem.  &  Bal.  Code,  §  389.     See  §  10,  supra. 


189  CERTIFICATION   OF   BILL   OR  STATEMENT.  §  105 

authorize  the  judge  to  hear  any  matter  outside  of  the 
county  wherein  the  cause  or  proceeding  is  pending, 
except  by  consent  of  the  parties. 

"Section  2.  Any  judge  of  the  superior  court  of  the 
state  of  Washington  who  shall  have  heard  any  cause, 
either  upon  motion,  demurrer,  issue  of  fact,  or  other 
matter,  in  any  county  out  of  his  district,  may  decide, 
rule  upon,  and  determine  the  same  in  any  county  in 
this  state,  which  decision,  ruling  and  determination 
shall  be  in  writing  and  shall  be  filed  immediately  with 
the  clerk  of  the  county  where  such  cause  is  pend- 
ing."65 

The  courthouse  of  the  particular  county  wherein  a 
cause  is  pending  is,  no  doubt,  the  only  legitimate  place 
for  hearings  in  the  absence  of  a  statute  expressly  per- 
mitting the  court  or  judge  to  change  the  place;  and  it 
therefore  follows  that  the  place  of  the  hearing  can  only 
be  changed  by  consent  of  the  parties.66 

Under  the  former  practice  the  place  of  the  hearing 
could  be  changed  by  stipulation  of  the  parties.87 

But  the  place  of  the  hearing  cannot  be  changed  to  a 
place  outside  of  the  judicial  district  wherein  the  cause 
is  pending,  even  with  the  consent  of  the  parties.  The 
statute  very  clearly  limits  the  territory  within  which 
the  hearing  may  be  held,  even  with  consent  of  the 

65  Bern.  &  Bal.  Code,  §§  41,  42.     See  §§  32,  33,  supra. 

86  See  Prospectors'  Development  Co.  v.  Brook,  31  Wash. 
187,  71  Pac.  774.  See,  also,  the  following  cases:  Driscoll 
v.  Dufur,  45  Wash.  494,  88  Pac.  929;  Shaw  v.  Spencer,  57 
Wash.  587, 107  Pac.  383 ;  State  ex  rel.  Clark  v.  Neal,  19  Wash. 
642,  54  Pac.  31. 

«7  Haas  v.  Gaddis,  1  Wash.  89,  23  Pac.  1010. 


§  106      BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OP   FACTS.      190 

parties,  to  the  judicial  district  wherein  the  cause  is 
pending.88 

Under  former  statutes  the  rule  was  different." 

§  106.  When  a  New  Notice  must  be  Given. — The 
statute  provides  that  "if  the  judge  is  absent  at  the 
time  named  in  a  notice  or  fixed  by  adjournment,  a  new 
notice  may  be  served. ' ' T0 

The  statute,  in  thus  providing  for  a  new  notice  when 
the  judge  is  absent  at  the  appointed  time,  contemplates 
that  the  original  notice  is  not  sufficient  to  authorize  a 
settlement  and  certification  of  the  bill  or  statement 
after  the  time  fixed  in  the  notice  or  by  the  adjournment 
(whether  the  adjournment  be  by  order  of  the  court  or 
by  stipulation  of  the  parties) ;  in  other  words,  that  the 
vitality  of  the  notice  ceases  at  the  time  appointed  for 
the  hearing.  This  must  be  so,  or  the  statutory  provi- 
sion is  useless.  The  word  "may,"  therefore,  means 
"must"  in  such  a  case,  and  a  new  notice  is  necessary. 

The  intention  of  the  statute  plainly  is  that  the  hear- 
ing may  be  postponed  or  adjourned  in  such  a  case  by 
a  stipulation  of  the  parties,  and  that  if  it  cannot  be  so 
postponed,  a  new  notice  may  be  resorted  to;  but  that, 
in  any  event,  the  one  method  or  the  other  is  a  neces- 
sity.71 

But  this  is  not  the  only  instance  where  the  necessity 
of  a  new  notice  is  contemplated  by  the  statute,  even 

68  See  Prospectors'  Development  Co.  v.  Brook,  31  Wash. 
187,  77  Pac.  774. 

69  King  County  v.  Hill,  1  Wash.  63,  23  Pac.  926;  Doyle 
v.  McLeod,  4  Wash.  732,  31  Pac.  96;  State  ex  rel.  Malouf 
v.  McDonald,  21  Wash.  201,  57  Pac.  336;  Marsh  v.  Wade, 
3  Wash.  Ter.  477,  17  Pac.  886. 

70  Rem.  &  Bal.  Code,  §  389.     See  §  10,  supra. 

71  See  Prospectors'  Development  Co.  v.  Brook,  31  Wash. 
187,  71  Pae.  774. 


191  CERTIFICATION   OF   BILL   OR   STATEMENT.  §  106 

though  it  is  the  only  instance  which  is  expressly  men- 
tioned. 

It  has  been  seen  that  the  time  of  the  hearing  of  the 
application  can  only  be  postponed  or  adjourned  by  an 
order  of  the  judge,  or  by  stipulation  of  the  parties.72 

This  being  so,  a  new  notice  is  necessary  if  the  appli- 
cation is  not  heard  at  the  appointed  time,  and  there  is 
no  adjournment,  even  though  the  judge  is  present  at 
the  appointed  time.78 

A  new  notice  is  also  clearly  necessary  where  the 
hearing  has  been  adjourned  to  a  place  outside  of  the 
judicial  district  wherein  the  cause  or  proceeding  is 
pending,  and  the  bill  or  statement  has  been  there  set- 
tled and  certified.74 

Or  where  the  original  notice  fixes  the  time  for  the 
hearing  of  the  application  on  a  legal  holiday  or 
Sunday.76 

Or  where  the  original  notice  fixes  the  time  for  the 
hearing  of  the  application  within  the  period  allowed 
by  the  statute  for  the  proposal  of  amendments,  and 
is  for  that  reason  void.78 

Or  where  the  original  notice  allows  an  insufficient 
time  for  the  hearing  of  the  application.77 

Or  where  the  original  notice  designates  a  time  sub- 
sequent to  the  time  limited  by  statute.78 

72  See  §  103,  supra.     See,   also,  Rem.  &  Bal.   Code,  §  389. 
See  §  10,  supra. 

73  See  Dodds  v.  Gregson,  35  Wash.  402,  77  Pac.  791. 

74  See  Prospectors'  Development  Co.  v.  Brook,  31  Wash. 
187,  71  Pac.  774. 

75  See  Cadwell  v.  First  National  Bank,  3  Wash.  188,  28 
Pac.  365. 

78  See  Costello  v.  Drainage  District  No.  1,  King  County, 
44  Wash.  344,  87  Pac.  513. 

77  See  Taylor  v.  Osburn,  1  Wash.  189,  22  Pac.  858. 

78  Boyer  v.  Boyer,  4  Wash.  80,  29  Pac.  981. 


§  106     BILLS  OP  EXCEPTIONS  AND   STATEMENTS  OP  FACTS.      192 

Or  where  the  original  notice  designates  a  place 
which  is  outside  of  the  judicial  district  in  which  the 
cause  or  proceeding  is  pending.79 

Or  where  the  original  notice,  without  consent  of 
the  parties  to  the  change,  designates  a  place  for  the 
hearing  which  is  not  within  the  particular  county 
wherein  the  cause  is  pending,  though  it  is  within  the 
judicial  district  of  the  judge  before  whom  the  cause 
is  pending.80 

Or  where  the  original  notice  designates  the  wrong 
judge.81 

Or  where  the  original  notice  is  not,  in  other  respects, 
such  as  the  statute  contemplates. 

But  a  failure  to  give  a  new  notice  may,  of  course,  be 
waived ;  as,  for  instance,  where  the  application  is  heard 
and  the  bill  or  statement  settled  and  certified  at  a  time 
subsequent  to  the  time  fixed  by  the  notice,  and  there 
is  no  adjournment  nor  new  notice,  and  even  though  the 
judge  was  present  at  the  time  fixed  by  the  notice  for 
the  hearing,  when  there  is  a  voluntary  appearance  and 
participation  in  the  settlement.82 

Also  where  the  judge  is  absent  at  the  time  fixed  for 
the  hearing,  but  subsequently,  without  notice  and  with- 
out adjournment  by  stipulation,  settles  and  certifies 
the  bill  or  statement,  allowing  the  proposed  amend- 
ments, when  there  is  a  voluntary  appearance  and  par- 
ticipation in  the  settlement.88 

78  See  Prospectors'  Development  Co.  v.  Brook,  31  Wash. 
187,  71  Pac.  774. 

80  See  Driscoll  v.  Dufur,  45  Wash.  494,  88  Pac.  929 ;  Shaw 
v.  Spencer,  57  Wash.  587,  107  Pac.  383.     See,  also,  State  ex 
rel.  Clark  v.  Neal,  19  Wash.  642,  54  Pac.  31. 

81  Coats  v.  West  Coast  Fire  &  Marine  Ins.  Co.,  4  Wash. 
375,  30  Pac.  404,  850. 

82  McGlauflin  v.  Merriam,  7  Wash.  Ill,  34  Pac.  561. 
88  State  v.  Payne,  6  Wash.  563,  34  Pac.  317. 


193  CERTIFICATION   OF   BILL   OR  STATEMENT.  §  107 

Also,  under  former  statutes,  where  the  judge  was 
absent  at  the  time  fixed  by  the  notice  for  the  hearing, 
and  the  bill  or  statement  was  subsequently  settled  and 
certified  without  adjournment  and  without  further 
notice,  it  was  held  that  the  failure  to  give  a  new  notice 
was  waived  by  the  failure  of  the  objecting  party  to 
serve  a  written  notice  upon  the  opposite  party,  stating 
whether  or  not  the  correctness  of  the  statement  of 
facts  was  contested,  and  if  contested,  in  what  partic- 
ular or  particulars  it  was  deficient,  incorrect  or  incom- 
plete, as  required  by  statute.84 

Notice  of  the  mere  certification  of  the  bill  or  state- 
ment is  not  necessary,  for  the  certification  is  a  judicial 
act.  This  is  evident  from  the  rule  heretofore  an- 
nounced that  notice  of  the  application  for  the  certifica- 
tion of  the  bill  or  statement  is  not  necessary  when  the 
bill  or  statement  has  been  settled  by  the  agreement, 
express  or  implied,  of  the  parties.85 

Notice  is  only  necessary  for  the  hearing  of  the  appli- 
cation for  the  settlement,  the  ministerial  act.  There- 
fore, when  the  bill  or  statement  is  allowed  to  be 
returned  for  proper  certification  after  having  once 
been  forwarded  to  the  supreme  court,  notice  of  the 
recertification  is  not  necessary.88 

§  107.    When  the   Certification   may  be   Made. — 

When  the  application  for  the  settlement  and  certifica- 
tion of  the  bill  or  statement  has  been  heard,  and  the 
contents  of  the  bill  or  statement  has  been  determined 
upon;  or  when  the  bill  or  statement  has  been  settled 
by  the  agreement,  express  or  implied,  of  the  parties, 

84  Ward  v.  Huggins,  7  Wash.  617,  32  Pac.  740,  1015,  36 
Pac.  285. 

85  See  §  92,  supra,  and  cases  cited. 

••  Littlejohn  v.  Miller,  5  Wash.  399,  31  Pac.  758. 

18 


§  107      BILLS   OF   EXCEPTIONS   AND   STATEMENTS   OF  FACTS.      194 

it  next  devolves  upon  the  judge  to  examine  the  record 
with  a  view  to  the  certification,  which  is  the  final  act 
by  which  the  bill  or  statement  is  judicially  determined 
to  be,  in  all  respects,  a  proper  bill  or  statement. 

The  statute  prescribes  no  time  within  which  this 
judicial  act  must  be  done,  and  therefore  it  must  be 
understood  as  contemplating  that  the  judge  shall  have 
at  least  a  reasonable  time  for  deliberation.87 

Indeed,  the  bill  or  statement  may  not  be  certified 
at  all;  for  upon  examination  of  the  record  it  may  ap- 
pear that  it  is  not,  as  a  matter  of  law,  entitled  to  cer- 
tification; as,  for  instance,  where  it  appears  that  the 
notice  of  appeal  was  not  served  within  the  time  pre- 
scribed by  statute,  in  which  event  the  judge  cannot  be 
compelled  to  certify  it.88 

Or  it  may  appear  upon  investigation  of  the  record 
by  the  judge  that  the  cause  itself  is  not  within  the 
appellate  jurisdiction  of  the  supreme  court,  or  that  the 
bill  or  statement  was  not  filed  and  served  within  the 
time  prescribed  by  statute,  or  that  it  was  served  before 
it  was  filed,  or  that  the  bond  on  appeal  has  not  been 
given,  or  is  insufficient,  in  any  of  which  cases  (and 
there  are  others  which  will  readily  occur  to  the  reader) 
the  judge,  it  is  clear,  would  not  be  compelled  to  cer- 
tify it. 

But  it  is  unquestionably  the  rule  that  a  bill  or  state- 
ment which  is  certified  and  filed  in  the  supreme  court 
before  or  at  the  time  of  the  hearing  of  the  cause  on 
appeal  is  not  too  late.89 

87  State  ex  rel.  Miles  v.  Superior  Court,  13  Wash.  514,  43 
Pac.  636. 

88  Shipley  v.  McPherson,  46  Wash.  172,  89  Pac.  408. 

89  Rem.  &  Bal.  Code,  §§  389,  1729.     See  §§  10,  21,  supra; 
Moding   v.   Denholm,   40  Wash.    463,    82    Pac.    738;   Pros- 
pectors'  Development  Co.  v.  Brook,  31  Wash.  187,  71  Pac. 


195  CERTIFICATION   OP   BILL   OB  STATEMENT.  §  108 

But  a  statement  of  facts  cannot,  as  has  been  before 
observed,  be  certified  before  the  entry  of  the  judg- 
ment or  order  from  which  the  appeal  has  been  taken, 
or  with  a  view  to  an  appeal  from  which  it  has  been 
proposed.90 

A  bill  of  exceptions,  however,  may  be  certified  either 
before  or  after  the  entry  of  the  judgment  or  order 
appealed  from.91 

But  either  the  bill  or  statement  may  be  certified 
before  giving  the  notice  of  appeal.92 

And  participation  in  the  settlement  of  the  bill  or 
statement  does  not  estop  a  party  from  raising  juris- 
dictional  questions;  as,  for  instance,  that  the  notice  of 
appeal  was  prematurely  given.9* 

§  108.    Where  the  Certification  may  be  Made. — 

The  bill  or  statement  may  be  certified  in  any  county 
within  the  judicial  district  wherein  the  cause  is  pend- 
ing; and  if  the  judge  who  heard  the  application  for 
the  settlement  and  certification  is  a  visiting  judge,  it 
may  be  certified  by  him  in  any  county  of  the  state.94 

774;  Dodds  v.  Gregson,  35  Wash.  402,  77  Pac.  791.  See, 
also,  Littlejohn  v.  Miller,  5  Wash.  399,  31  Pac.  758 ;  State  ex 
rel.  Klein  v.  Superior  Court,  36  Wash.  44,  78  Pac.  137.  See 
also,  State  ex  rel.  Dutch  Miller  Mining  &  Smelting  Co.  v. 
Superior  Court,  30  Wash.  43,  70  Pac.  102. 

80  Bartlett  v.  Reichenecker,  6  Wash.  168,  32  Pac.  1062. 
See,  also,  Phillips  v.  Port  Townsend  Lodge  No.  6,  F.  &  A.  M., 
8  Wash.  529,  36  Pac.  476. 

91  Rem.  &  Bal.  Code,  §  388.     See  §  9,  supra. 

92  Littlejohn  v.  Miller,  5  Wash.  399,  31  Pac.  758. 
98  Marsh  v.  Degeler,  3  Wash.  71,  27  Pac.  1073. 

9*  Rem.  &  Bal.  Code,  §§  41,  42.  See  §§  32,  33,  supra; 
Const.,  art.  4,  §  7.  See,  also,  §  65,  supra,  and  cases  cited. 


§  109     BILLS  OP  EXCEPTIONS  AND  STATEMENTS  OF  FACTS.      196 

§  109.    By  Whom  the  Certification  may  be  Made. — 

It  is  the  general  rule  that  the  bill  or  statement  must 
be  certified,  or,  in  other  words,  authenticated;  and  if 
not,  it  will  not  be  considered.95 

This  being  so,  our  next  inquiry  will  be  directed  to 
the  person  or  persons  in  whom  the  power  of  certifica- 
tion resides.  The  rule  is  that  the  certification  may  be 
made  by  any  judge  of  the  court  wherein  the  cause  is 
pending,  or  by  any  nonresident  judge,  or  judge  pro 
tempore,  before  whom  the  cause  was  tried.98 

The  statute  provides  that  the  notice  of  application 
for  the  settlement  and  certification  of  the  bill  or  state- 
ment shall  designate  "the  judge  of  the  court  before 
whom  the  cause  is  pending  or  was  tried. ' ' 9T 

The  constitution  provides  that  "the  judge  of  any 
superior  court  may  hold  a  superior  court  in  any 
county  at  the  request  of  the  judge  of  the  superior  court 
thereof,  and  upon  the  request  of  the  governor  it  shall 
be  his  duty  to  do  so.  A  case  in  the  superior  court  may 
be  tried  by  a  judge  pro  tempore,  who  must  be  a  mem- 
ber of  the  bar,  agreed  upon  in  writing  by  the  parties 
litigant  or  their  attorneys  of  record,  approved  by  the 
court,  and  sworn  to  try  the  case."  98 

95  Hanson  v.  Tompkins,  2  Wash.  508,  27  Pac.  73 ;  Howard 
v.  Boss,  3  Wash.  292,  28  Pac.  526;  Madigan  v.  West  Coast 
Fire  &  Marine  Ins.  Co.,  3  Wash.  454,  28  Pac.  1027;  Mc- 
Carty  v.  Hayden,  4  Wash.  537,  30  Pac.  637 ;  Stinson  v.  Sachs, 
8  Wash.  391,  36  Pac.  287;  Case  v.  Ham,  9  Wash.  54,  36 
Pac.  1050;  Sprague  v.  Meagher,  32  Wash.  62,  72  Pac.  108, 
708 ;  Adams  v.  Columbia  Canal  Co.,  51  Wash.  297,  98  Pac. 
741. 

86  Rem.  &  Bal.  Code,  §  389.     See  §  10,  supra;  Const.,  art. 

487 
*»  a  '  • 

97  Rem.  &  Bal.  Code,  §  389.     See  §  10,  supra. 
88  Const.,  art.  4,  §  7. 


197  CERTIFICATION   OP   BILL   OR   STATEMENT.  §  109 

The  rule  is  therefore  the  same  as  the  rule  which  re- 
lates to  the  judge  who  may  make  the  order  extending 
the  time  for  the  filing  and  service  of  the  proposed  bill 
or  statement." 

When  there  are  two  or  more  judges  in  whom  the 
power  of  certification  resides,  and  the  bill  or  state- 
ment has  been  settled  by  the  agreement,  express  or 
implied,  of  the  parties,  no  particular  preference  need 
be  shown  in  the  choice  of  the  judge;  but  where  the 
bill  or  statement  has  not  been  settled  by  the  agreement 
of  the  parties,  the  judge  who  tried  the  cause  should, 
of  course,  be  preferred  and  designated  in  the  notice  of 
application  for  the  settlement  and  certification;  but 
where  a  preference  does  not  exist,  owing  to  the  death 
of  the  judge  who  tried  the  cause,  or  where  a  prefer- 
ence would  be  impracticable  or  of  no  avail,  as  where 
a  visiting  judge  who  tried  the  cause  refuses  to  attend 
the  hearing  of  the  application  for  settlement  and  cer- 
tification, and  to  settle  and  certify  the  bill  or  state- 
ment, it  may  be  certified  by  any  other  judge  in  whom 
the  power  of  certification  resides. 

This  simple  rule  has  been  somewhat  obscured  by  a 
subsequent  section  of  the  statutes,  parts  of  which  are 
clearly  unconstitutional,  and  the  remainder  nothing 
more  than  a  periphrasis  of  that  which  is  already  pro- 
vided for  by  the  simple  clause  ' l  tine  judge  of  the  court 
before  whom  the  cause  is  pending  or  was  tried." 

The  section  referred  to  reads  as  follows: 
"If  the  judge  before  whom  the  cause  was  pending 
or  tried  shall  from  any  cause  have  ceased  to  be  such 
judge  he  shall,  notwithstanding,  settle  and  certify,  as 
the  late  judge,  any  bill  of  exceptions  or  statement  of 
facts  that  it  would  be  proper  for  him  to  settle  and 

89  See  §  64,  supra,  and  eases  cited.  See,  also,  §  100,  supra, 
and  cases  cited. 


§  109     BILLS   OF   EXCEPTIONS   AND   STATEMENTS   OP   FACTS.      198 

certify  if  he  were  still  such  judge,  and  such  acts  on 
his  part  shall  have  the  same  effect  as  if  he  were  still 
in  office;  and  he  may  be  compelled  by  mandate  so  to 
do,  as  if  still  in  office.  If  such  judge  shall  die  or  re- 
move from  the  state  while  in  office  or  afterward, 
within  the  time  within  which  a  bill  of  exceptions  or 
statement  of  facts  in  a  cause  that  was  pending  or  tried 
before  him,  might  be  settled  and  certified  under  the 
provisions  of  this  chapter,  and  before  having  certified 
such  bill  or  statement,  such  bill  or  statement  may  be 
settled  by  stipulation  of  the  parties  with  the  same  ef- 
fect as  if  duly  settled  and  certified  by  such  judge  while 
still  in  office.  But  if  the  parties  cannot  agree,  and  if 
such  judge,  when  removed  from  the  state,  does  not 
attend  within  the  state  and  settle  and  certify  a  bill 
of  exceptions  or  statement  of  facts  in  case  one  has 
been  duly  proposed,  his  successor  in  office  shall  settle 
and  certify  such  bill  or  statement  in  the  manner  in  this 
chapter  provided,  and  in  so  doing  he  shall  be  guided, 
so  far  as  practicable,  by  the  minutes  taken  by  his  pred- 
ecessor in  office,  or  by  the  stenographer,  if  one  was  in 
attendance  on  the  court  or  judge,  and  may,  in  order 
to  determine  any  disputed  matter  not  sufficiently  ap- 
pearing upon  such  minutes,  examine  under  oath  the 
attorneys  in  the  cause  who  were  present  at  the  trial 
or  hearing,  or  any  of  them. ' '  10° 

That  portion  of  the  above  section  which  attempts 
to  confer  or  impose  the  power  of  settlement  and  cer- 
tification upon  an  ex-judge  has  already  been  held  to 
be  unconstitutional,  for  the  reason  that  it  attempts  to 
delegate  judicial  powers  to  one  in  whom  judicial  pow- 
ers no  longer  reside.101 

100  Rem.  &  Bal.  Code,  §  392.     See  §  13,  supra. 

101  Hallam  v.  Tillinghast,  19  Wash.  20,  52  Pac.  329. 


199  CERTIFICATION   OF   BILL   OB   STATEMENT.  §  109 

Under  former  statutes  it  was  held  that  an  ex-judge 
had  no  power  to  settle  and  certify  a  bill  of  exceptions 
or  statement  of  facts. 

The  decisions  were  rendered  apparently  on  the  the- 
ory that  the  statutes  failed  to  confer  such  power.102 

In  this  last  case,  however,  a  bill  or  statement  which 
was  settled  and  certified  by  an  ex-judge  was  enter- 
tained because  respondents  did  not  move  to  strike  the 
bill  or  statement;  but  moved,  instead,  to  dismiss  the 
appeal.  Justices  Dunbar  and  Anders  dissented. 

In  an  early  case  under  the  present  statutes  it  was 
held  that  an  ex-judge  could  not  be  compelled  to  settle 
and  certify  a  bill  of  exceptions  or  statement  of  facts, 
for  the  reason  that  the  statute  does  not  purport  to  do 
more  than  to  authorize  ex- judges  to  settle  and  certify; 
and  that  it  does  not,  and  could  not,  require  them  to  do 
anything.103 

In  another  early  case  it  was  held  that  the  present 
statutes  authorizing  ex-judges  to  settle  and  certify  bills 
of  exceptions  and  statements  of  facts  do  not  authorize 
an  ex-judge  to  transfer  the  matter  of  settlement  and 
certification  to  his  successor  in  office;  and  the  bill  or 
statement  which  was  settled  and  certified  by  the  suc- 
cessor of  the  ex-judge  was,  accordingly,  stricken  from 
the  cause.104 

102  Faulconer   v.    Warner,    2    Wash.    525,    27    Pac.    274; 
Gunderson  v.  Cochrane,  3  Wash.  476,  28  Pac.  1105 ;  Enos  v. 
Wilcox,  3  Wash.  44,  28  Pac.  364 ;  Gordon  v.  Nelson,  4  Wash. 
817,  30  Pac.  647;  Watt  v.  O'Brien,  6  Wash.  415,  33  Pac. 
969;  Northern  Pacific  &  Puget  Sound  Shore  R.  R.  Co.  v. 
Coleman,  3  Wash.  228,  28  Pac.  514. 

103  State  ex  rel.  Hinchey  v.  Allyn,  7  Wash.  285,  34  Pac. 
914. 

104  Michigan  Mfg.  Co.  v.  Saunders,  7  Wash.  302,  34  Pac. 
1102. 


§  109      BILLS   OP  EXCEPTIONS   AND   STATEMENTS   OP  PACTS. 

It  is  now,  however,  clearly  settled  that  an  ex-judge 
has  not  the  power  to  settle  and  certify  a  bill  of  excep- 
tions or  statement  of  facts.  If,  however,  an  ex- judge 
does  settle  and  certify  a  bill  or  statement,  a  subse- 
quent settlement  and  certification  by  his  successor  in 
office  cures  the  defect.105 

The  clerk  of  the  lower  court  has  not,  of  course,  the 
judicial  power  to  settle  and  certify  a  bill  of  exceptions 
or  statement  of  facts.10' 

Nor  can  the  parties  by  their  agreement  exercise  the 
judicial  power  of  certifying  the  bill  or  statement.107 

Nor  can  the  bill  or  statement  be  authenticated  by 
the  affidavit  of  a  stenographer.108 

As  between  two  or  more  judges  who  have  certified 
different  bills  or  statements,  the  bill  or  statement  which 
is  certified  by  the  judge  who  first  and  rightfully  as- 
sumes jurisdiction  will  be  preferred  to  the  other  or 
others.109 

That  portion  of  the  above  section  of  the  statutes 
which  provides  for  the  certification  of  the  bill  or  state- 
ment by  agreement  of  the  parties  is  clearly  unconsti- 
tutional, for  the  reason  that  it  also  attempts  to  dele- 
gate the  judicial  functions  of  the  judge  to  the  parties 
themselves. 

105  Rauh  v.  Scholl,  19  Wash.  30,  52  Pae.  332;  Anderson 
v.  Provident  Life  &  Trust  Co.,  26  Wash.  192,  66  Pac.  415. 

106  Howard  v.  Boss,  3  Wash.  292,  28  Pac.  526;  McCarty 
v.  Hayden,  4  Wash.  537,  30  Pac.  637. 

107  Madigan  v.  West  Coast  Fire  &  Marine  Ins.  Co.,  3  Wash. 
454,  28  Pac.  1027. 

108  Adams  v.  Columbia  Canal  Co.,  51  Wash.  297,  98  Pac. 
741. 

109  See  Hill  v.  Young,  7  Wash.  33,  34  Pac.  144. 


201  CERTIFICATION   OF   BILL   OR   STATEMENT.  §  109 

It  has  long  been  the  rule  that  the  parties  themselves 
cannot  exercise  this  judicial  function.110 

The  remainder  of  the  section  above  quoted  provides 
for  nothing  more  than  the  simple  clause  "the  judge 
of  the  court  before  whom  the  cause  is  pending  or  was 
tried"  provides  for;  except  that  it  undertakes  to  con- 
fer upon  the  successor  of  a  nonresident  judge  who 
tried  the  cause  the  judicial  power  of  certifying  the  bill 
or  statement  as  such  successor.  In  this  respect  the 
section  is  again  unconstitutional,  for  the  constitution 
clearly  limits  the  delegation  of  judicial  power  to  the 
particular  judge  selected. 

Therefore,  when  a  nonresident  judge  who  tried  a 
cause  dies,  his  successor  in  office  has  not  the  judicial 
power,  as  such  successor,  to  settle  and  certify  the  bill 
or  statement. 

It  has  been  held,  it  is  true,  that  where  a  nonresident 
judge  who  tried  the  cause  dies,  the  bill  or  statement  may 
be  settled  and  certified  by  his  successor  in  office  when 
he  has  been  requested  by  the  resident  judge  to  do  so.111 

But  in  such  a  case  the  judicial  power  of  the  successor 
who  settles  and  certifies  the  bill  or  statement  does  not 
exist  by  reason  of  the  fact  that  he  is  the  successor  of 
the  deceased  nonresident  judge  who  tried  the  cause, 
notwithstanding  the  statutory  provision;  but  it  exists 
by  virtue  of  the  fact  that  upon  request  of  the  resident 
judge  to  attend  and  settle  and  certify  the  bill  or  state- 
ment, he  becomes,  upon  compliance  with  such  request, 
for  the  time  being,  "the  judge  of  the  court  before  whom 
the  cause  is  pending." 

.  no  See  Madigan  v.  West  Coast  Fire  &  Marine  Ins.  Co.,  3 
Wash.  454,  28  Pac.  1027.  See,  also,  §  89,  supra,  and  cases 
cited. 

111  Gray's  Harbor  Boom  Co.  v.  Lownsdale,  54  Wash.  83, 
102  Pac.  1041,  104  Pac.  267. 


§  109      BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OP   PACTS.      202 

The  constitution  confers  upon  him,  when  he  com- 
plies with  the  request,  the  power  ' '  to  hold  court, ' '  and 
the  phrase  "to  hold  court"  palpably  means  the  power 
to  exercise  the  judicial  functions  of  the  resident  court 
or  judge. 

In  the  above  case,  therefore,  the  judge  who  settled 
and  certified  the  bill  or  statement  derived  his  judicial 
power  to  do  so  from  the  constitution,  and  not  from 
the  statute.112 

Thus  it  is  seen  that  the  above  section  serves  merely 
the  purpose  of  confusing  a  subject  which  is  already 
sufficiently  complex ;  and  is  therefore  really  not  entitled 
to  a  place  among  the  statutes. 

The  constitution  confers  upon  a  judge  pro  tempore 
the  right  to  ' '  try  the  case. ' ' 11S 

The  right  to  "try  the  case"  is  a  right  to  retain  juris- 
diction to  the  end  for  the  purpose  of  disposing  of  the 
cause  upon  the  merits.114 

The  certification  of  the  bill  or  statement  is  a  step  and 
proceeding  in  the  cause  itself,  resting  upon  the  juris- 
diction originally  acquired  by  the  court  in  the  cause.115 

A  superior  court  also  retains  jurisdiction,  notwith- 
standing an  appeal,  for  the  purpose  of  settling  and 
certifying  bills  of  exceptions  and  statements  of  facts, 
and  for  all  purposes  in  so  far  as  the  cause  is  not  af- 
fected by  the  appeal.116 

112  See   Const.,   art.   4,  §  7.     See  the  early  case  of  King 
County  v.  Hill,  1  Wash.  63,  23  Pac.  926. 

113  Const.,  art.  4,  §  7. 

114  See  State  ex  rel.  Cougill  v.  Sachs,  3  Wash.  691,  29  Pac. 
446 ;  Fisher  v.  Puget  Sound  Brick  etc.  Co.,  34  Wash.  578,  76 
Pac.  107. 

115  Rem.  &  Bal.  Code,  §  393.     See  §  14,  supra. 

116  Rem.  &  Bal.  Code,  §  1731.     See  §  23,  supra. 


203  CERTIFICATION   OF   BILL   OR   STATEMENT.  §  109 

A  judge  pro  tempore  has,  therefore,  the  judicial 
power  of  certifying  bills  of  exceptions  and  statements 
of  facts. 

It  has  accordingly  been  held  that  a  judge  whose 
term  of  office  had  expired  before  he  had  finally  dis- 
posed of  the  cause,  and  who  had  subsequently  been 
appointed  judge  pro  tempore  in  the  cause,  had  the  ju- 
dicial power  to  certify  a  statement  of  facts.111 

In  a  later  case  a  judge  pro  tempore  who  tried  the 
cause  was  thereafter  elected  judge,  and  as  such  judge 
settled  and  certified  a  statement  of  facts  in  the  cause. 
It  was  urged  that  he  should  have  certified  the  state- 
ment of  facts  as  judge  pro  tempore.  The  court  said: 
"While  he  could  have  certified  to  the  statement  as 
judge  pro  tempore,  under  the  authority  of  the  case  of 
Nelson  v.  Seattle  Traction  Co.,  25  Wash.  602,  66  Pac. 
61,  the  fact  that  he  used  his  official  title  can  make  no 
difference.  The  material  requirement  is  that  it  be  cer- 
tified by  the  judge  qualified  so  to  do."  118 

The  rule  of  the  section  must  be  understood  as  mean- 
ing that  when  the  certification  is  made  by  a  judge 
who  did  not  try  the  cause,  he  must  be  one  who  is  qual- 
ified to  sit  in  the  cause ;  for  if  he  is  not  qualified  to  sit 
in  the  cause,  he  is  clearly  not  qualified  to  exercise  the 
judicial  function  of  certifying  the  bill  or  statement; 
and  therefore,  strictly  speaking,  the  cause  cannot  be 
said  to  be  pending  before  him.  Disqualification  is, 
however,  something  which  may  be  waived ;  and  he  may 
therefore,  no  doubt,  be  designated  in  the  notice  of  the 
application  for  the  settlement  and  certification  of  the 
bill  or  statement. 

117  Nelson  v.  Seattle  Traction  Co.,  25  Wash.  602,  66  Pac. 
61. 

118  Graton  &  Knight  Mfg.  Co.  v.  Eedelsheimer,  28  Wash. 
370,  68  Pac.  879. 


§  110     BILLS   OF   EXCEPTIONS   AND   STATEMENTS   OF   FACTS.      204 

§  110.  The  Number  of  Bills  of  Exceptions  and 
Statements  of  Facts  Which  may  be  Certified.— The 
certifying  of  a  bill  of  exceptions  or  statement  of  facts 
does  not  prevent  the  subsequent  certifying  of  other 
bills  of  exceptions  or  statements  of  facts,  or  both,  com- 
prising other  matters  in  the  cause,  at  the  instance  of 
the  same  or  another  party;  but  only  one  bill  of  excep- 
tions or  statement  of  facts  can  be  settled  or  certified 
after  the  rendition  of  the  final  judgment  in  the  cause.119 

This  provision  of  the  statute  that  "only  one  bill  of 
exceptions  or  statement  of  facts  can  be  settled  or  cer- 
tified after  the  rendition  of  the  final  judgment  in  the 
cause"  simply  means  that  only  one  bill  or  statement 
which  embodies  material  facts,  matters  and  proceed- 
ings occurring  in  the  cause  prior  to  the  rendition  of 
the  final  judgment  can  be  proposed  for  settlement  and 
certification  after  the  rendition  of  such  final  judgment. 

The  terminology  of  this  portion  of  the  section  is,  it 
must  be  confessed,  confusing;  for  the  language  is  that 
"only  one  bill  of  exceptions  or  statement  of  facts  can 
be  settled  or  certified  after  the  rendition  of  the  final 
judgment  in  the  cause";  whereas  the  plain  intention 
of  the  statutes  as  a  whole  is  that  as  many  bills  or  state- 
ments may  be  settled  and  certified  after  the  rendition 
of  the  final  judgment  as  have  been  duly  proposed 
prior  thereto,  though  only  one  bill  or  statement  which 
embodies  material  facts,  matters  and  proceedings 
occurring  in  the  cause  prior  to  the  rendition  of  the 
final  judgment  can  be  proposed  for  settlement  and  cer- 
tification after  the  rendition  of  such  final  judgment; 
while  the  number  of  bills  or  statements  which  relate 
to  appealable  orders  made  after  the  rendition  of  such 
final  judgment  is  unaffected  by  any  limitation. 

119  Rem.  &  Bal.  Code,  §  388.     See  §  9,  supra. 


205  CERTIFICATION   OP   BILL   OR   STATEMENT.  §  110 

A  somewhat  extended  consideration  of  this  subject 
may  be  of  some  value;  for  in  one  case  it  appears  to 
have  been  assumed  by  counsel  (and  pardonably  too) 
that  but  one  bill  or  statement  can  be  certified  after  the 
rendition  of  the  final  judgment,  though  the  opinion 
of  counsel  was  not  shared  in  by  the  court.120 

The  phrase  " final  judgment  in  the  cause"  is  here 
used  in  its  ordinary  sense,  and  means  "the  final  deter- 
mination of  the  rights  of  the  parties  in  the  action. ' ' m 

The  statutes  relating  to  appeals  and  those  relating 
to  bills  of  exceptions  and  statements  of  facts  are  in  pari 
materia,  and  should  therefore  be  construed  together. 

Furthermore,  any  particular  provision  of  the  stat- 
utes relating  to  bills  of  exceptions  and  statements  of 
facts  should  be  so  construed  with  the  other  provisions 
that  the  whole  may,  if  possible,  stand. 

Thus,  the  general  statute  relating  to  appeals  ex- 
pressly provides  for  appeals  from  the  final  judgment 
and  also  from  certain  specified  orders  made  before  and 
after  the  rendition  of  the  final  judgment.122 

The  statutes  relating  to  bills  of  exceptions  and  state- 
ments of  facts  also  expressly  provide  for  a  statement 
of  facts  "after  the  making  of  an  appealable  order  or 
the  final  judgment  in  the  cause";  and  for  a  bill  of 
exceptions  at  any  stage  of  an  action  or  proceeding.123 

It  thus  appears  that  the  phrase  "final  judgment  in 
the  cause"  is  used  advisedly  by  the  statutes  relating 
to  bills  of  exceptions  and  statements  of  facts  and  in 
contradistinction  to  appealable  orders. 

120  See  State  ex  rel.  Bickford  v.  Benson,  21  Wash.  365,  58 
Pac.  217. 

121  Rem.  &  Bal.  Code,  §  404. 

122  Rem.  &  Bal.  Code,  §  1716. 

123  Rem.  &  Bal.  Code,  §  388.     See  §  9,  supra. 


§  110      BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OF   FACTS.      206 

When  all  provisions  which  are  in  pari  materia  are 
construed  together,  it  at  once  becomes  apparent  that 
bills  of  exceptions  and  statements  of  facts  which  relate 
to  appealable  orders  made  after  the  rendition  of  the 
final  judgment  are  not  intended  to  be  affected  by  any 
limitation  whatsoever;  for  if  they  were,  the  right  of 
appeal  therefrom  which  has  been  so  carefully  provided 
for  would  ofttimes  be  destroyed  owing  to  the  certifi- 
cation of  some  bill  or  statement  after  the  rendition  of 
the  final  judgment. 

On  the  other  hand,  it  also  becomes  apparent  that 
bills  of  exceptions  and  statements  of  facts  which  have 
been  duly  proposed  for  settlement  and  certification 
prior  to  the  rendition  of  the  final  judgment  are  not 
intended  to  be  affected  by  any  limitation  whatsoever; 
for  if  they  were,  the  right  of  appeal  from  appealable 
orders  made  prior  to  the  rendition  of  the  final  judg- 
ment, as  well  as  the  right  of  appeal  from  the  final 
judgment  itself,  would  also  be  ofttimes  destroyed 
owing  to  the  certification  of  some  bill  or  statement 
after  the  rendition  of  such  final  judgment. 

Moreover,  the  limitation  cannot  be  taken  in  its  lit- 
eral sense  and  be  understood  as  meaning  what  it  un- 
questionably says,  namely,  that  "only  one  bill  of 
exceptions  or  statement  of  facts  can  be  settled  or  cer- 
tified after  the  rendition  of  the  final  judgment  in  the 
cause ' ' ;  for  if  it  were  so  understood,  it  would  not  only 
necessarily  affect,  but  ofttimes  destroy,  the  right  of  ap- 
peal from  appealable  orders  made  after  the  rendition 
of  the  final  judgment,  as  well  as  the  right  of  appeal 
from  appealable  orders  made  prior  to  the  rendition  of 
the  final  judgment,  and  finally  the  right  of  appeal  from 
the  final  judgment  itself,  owing  to  the  certification  of 
some  bill  or  statement  after  the  rendition  of  such  final 
judgment. 


207  CERTIFICATION   OP   BILL   OR   STATEMENT.  §  110 

The  limitation  must  therefore  be  so  construed  with 
the  other  provisions  relating  to  bills  of  exceptions  and 
statements  of  facts  that  the  whole  may,  if  possible, 
stand;  and  this  is  not  a  difficult  task  after  the  forego- 
ing eliminations,  for  there  is  nothing  left  now  to  which 
the  limitation  can  be  applied  except  bills  of  exceptions 
and  statements  of  facts  which  embody  material  facts, 
matters  and  proceedings  occurring  in  the  cause  prior 
to  the  rendition  of  the  final  judgment  and  which  are 
proposed  for  settlement  and  certification  after  the  ren- 
dition of  such  final  judgment. 

These  are  the  objects  of  the  limitation,  for  its  appli- 
cation to  them  will  limit  their  number  to  a  single  bill 
or  statement,  but  will  not  destroy  any  right  of  appeal. 

The  meaning  of  this  limitation  having  been  thus 
determined,  a  few  words  regarding  the  reason  for  its 
existence  will  probably  not  be  out  of  place. 

The  statutes  recognize  the  fact  that  the  right  to  a  con- 
siderable number  of  bills  of  exceptions  especially 
may  accrue  prior  to  the  rendition  of  the  final  judg- 
ment; for  the  number  of  bills  of  exceptions  which 
may  be  proposed  prior  to  the  rendition  of  the  final 
judgment  may  be  limited  only  by  the  number  of 
oral  rulings  made;  and  the  number  of  statements  of 
facts  which  may  be  proposed  prior  to  the  rendition  of 
the  final  judgment  may  be  limited  only  by  the  number 
of  appealable  orders  made  prior  thereto. 

The  statutes  also  recognize  the  impossibility  of  pre- 
scribing a  limitation  to  the  number  of  bills  of  excep- 
tions or  statements  of  facts  which  may  be  proposed 
prior  to  the  rendition  of  the  final  judgment;  but  the 
statutes  also  further  recognize  the  fact  that  whether 
this  privilege  of  proposing  bills  or  statements  without 
limitation  as  to  the  number  prior  to  the  rendition  of 
the  final  judgment  is,  or  is  not,  exercised,  there  is  no 


§  111      BILLS   OF  EXCEPTIONS  AND   STATEMENTS   OP   PACTS.      208 

sound  reason  for  extending  the  privilege  beyond  the 
time  of  the  rendition  of  such  final  judgment.  Indeed, 
a  further  extension  of  the  privilege  would  impede 
rather  than  aid  the  administration  of  justice;  for  it 
would  unnecessarily  burden  the  courts  with  the  settle- 
ment and  certification  of  bills  of  exceptions  and  state- 
ments of  facts  when  a  single  bill  or  statement  would 
answer  every  purpose. 

It  is  thus  the  intention  of  the  statutes  to  limit  the 
right  of  a  party,  after  the  rendition  of  the  final  judg- 
ment in  the  cause,  to  the  proposal  for  settlement  and 
certification  of  but  one  bill  of  exceptions  or  statement 
of  facts  which  embodies  all  material  facts,  matters 
and  proceedings  occurring  in  the  cause  prior  to  the 
rendition  of  the  final  judgment,  and  to  leave  all  bills 
of  exceptions  or  statements  of  facts  which  relate  to 
appealable  orders  made  after  the  rendition  of  the 
final  judgment  unaffected;  and  also  to  permit  the 
settlement  and  certification  of  all  bills  or  statements 
which  have  been  duly  proposed  prior  thereto,  not- 
withstanding the  unfortunate  phraseology  that  but 
"one  bill  of  exceptions  or  statement  of  facts  can  be 
settled  or  certified  after  the  rendition  of  the  final  judg- 
ment in  the  cause." 

§  111.  The  Meaning  of  tne  Phrase  "Final  Judg- 
ment in  the  Cause"  When  Employed  With  Reference 
to  the  Number  of  Bills  of  Exceptions  and  Statements 
of  Facts  Which  may  be  Certified. — The  phrase  "final 
judgment  in  the  cause,"  when  employed  with  ref- 
erence to  the  number  of  bills  of  exceptions  and  state- 
ments of  facts  which  may  be  certified,  might  possibly 
be  understood  as  referring  to  the  last  order  from  which 
an  appeal  may  be  taken,  upon  the  theory  that  if  this 
is  not  its  intended  meaning,  the  statute,  instead  of 


209  CERTIFICATION   OP   BILL   OB  STATEMENT.  §  112 

assisting,  would  be  a  means  of  defeating,  appeals  from 
appealable  orders  made  after  the  final  judgment,  as 
such  phrase  is  usually  understood.  But  such  an  order 
cannot  be  determined  beforehand,  and  the  phrase 
" final  judgment  in  the  cause"  is  here  used  advisedly 
and  in  its  ordinary  sense,  and  means  "the  final  deter- 
mination of  the  rights  of  the  parties  in  the  action. ' '  m 

§  112.  The  Form  of  the  Certificate.— This  subject 
will  be  considered  in  a  twofold  view,  namely:  First, 
with  reference  to  the  form  of  the  certificate  when  the 
bill  or  statement  has  been  settled  by  the  agreement, 
express  or  implied,  of  the  parties;  and  secondly,  with 
reference  to  the  form  of  the  certificate  when  the  bill 
or  statement  is  settled  by  the  judge. 

And  first,  with  reference  to  the  form  of  the  cer- 
tificate when  the  bill  or  statement  has  been  settled 
by  the  agreement  of  the  parties. 

It  is  self-evident  that  if  the  judge  has  no  power  to 
settle  the  bill  or  statement  when  the  facts,  matters  and 
proceedings  have  been  agreed  upon  by  the  parties, 
but  has  merely  the  power  in  such  a  case  to  certify 
the  bill  or  statement  in  accordance  with  such  agree- 
ment, he  cannot  be  expected,  on  the  one  hand,  to  cer- 
tify to  the  completeness  of  the  contents  of  the  bill 
or  statement  from  his  own  knowledge;  nor  should  he 
be  allowed,  on  the  other  hand,  to  certify  the  bill  or 
statement  in  such  a  manner  as  to  show  that  it  is  in- 
sufficient or  incomplete.  A  certification  of  the  bill  or 
statement  in  accordance  with  the  agreement  of  the 
parties  is,  therefore,  all  that  could  be  reasonably  re- 
quired of  the  judge;  and  this  is  all  that  the  statute 
requires.  Indeed,  it  could  not  logically  require  more. 

124  See  §  110,  supra;  Rem.  &  Bal.  Code,  §  404. 

14 


§  112      BILLS   OP   EXCEPTIONS  AND   STATEMENTS  OP  FACTS.      210 

The  form  of  the  certificate  in  such  a  case  is  plainly 
provided  for  by  statute  as  follows: 

"The  judge  shall  certify  that  the  matters  and  pro- 
ceedings embodied  in  the  bill  or  statement,  as  the 
case  may  be,  are  matters  and  proceedings  occurring 
in  the  cause  and  that  the  same  are  thereby  made  a 
part  of  the  record  therein;  and,  when  such  is  the  fact, 
he  shall  further  certify  that  the  same  contains  all 
the  material  facts,  matters  and  proceedings  hereto- 
fore occurring  in  the  cause  and  not  already  a  part 
of  the  record  therein,  or  (as  the  case  may  be)  such 
thereof  as  the  parties  have  agreed  to  be  all  that  are 
material  therein.  The  certificate  shall  be  signed  by 
the  judge,  but  need  not  be  sealed;  and  thereupon  all 
the  matters  and  proceedings  embodied  in  the  bill  of 
exceptions  or  statement  of  facts,  as  the  case  may  be, 
shall  become  and  thenceforth  remain  a  part  of  the 
record  in  the  cause,  for  all  the  purposes  thereof  and 
of  any  appeal  therein. ' ' 125 

When  the  facts,  matters  and  proceedings  have  been 
agreed  upon  by  the  parties,  the  form  of  the  certificate 
should  be  such  as  to  require  the  judge  merely  to  certify 
"that  the  matters  and  proceedings  embodied  in  this 
bill  (or  statement)  are  matters  and  proceedings  occur- 
ring in  this  cause,  and  that  the  same  are  hereby  made  a 
part  of  the  record  herein;  and  that  this  bill  (or  state- 
ment) contains  such  of  the  facts,  matters  and  proceed- 
ings heretofore  occurring  in  this  cause,  and  not  already 
a  part  of  the  record  herein,  as  the  parties  have  agreed 
to  be  all  that  are  material  herein. ' ' 

This  is  the  form  which  the  statute  plainly  provides 
for,  and  which  the  decisions  recognize.126 

125  Bern.  &  Bal.  Code,  §  391.     See  §  12,  supra. 

126  Nickeus  v.  Lewis  County,  23  Wash.  125,  62  Pac.  763; 
Kane  v.  Kane,  35  Wash.  517,  77  Pac.  842.     See,  also,  the 


211  CERTIFICATION   OF   BILL   OB   STATEMENT.  §  112 

Secondly,  with  reference  to  the  form  of  the  cer- 
tificate when  the  bill  or  statement  is  settled  by  the 
judge. 

The  statute  provides  that  when  the  bill  or  state- 
ment is  settled  by  the  judge,  he  shall  certify  "that 
the  matters  and  proceedings  embodied  in  this  bill  (or 
statement)  are  matters  and  proceedings  occurring  in 
this  cause  and  that  the  same  are  hereby  made  a  part 
of  the  record  herein;  and  that  this  bill  (or  statement) 
contains  all  the  material  facts,  matters  and  proceed- 
ings heretofore  occurring  in  this  cause  and  not  already 
a  part  of  the  record  herein." 

When  the  bill  or  statement  is  settled  by  the  judge, 
the  certificate  must  be  substantially  in  the  form  thus 
prescribed  by  the  statute;  and  if  it  is  not,  the  bill 
or  statement  will  be  stricken  from  the  cause,  or  will 
be  disregarded.  This  was  the  rule  also  under  former 
statutes.127 

following  cases  generally:  State  ex  rel.  Hersner  v.  Arthur, 
7  Wash.  358,  35  Pac.  120;  Warburton  v.  Ralph,  9  Wash. 
537,  38  Pac.  140;  State  ex  rel.  Royal  v.  Linn,  35  Wash.  116, 
76  Pac.  513;  In  re  Hill's  Heirs,  7  Wash.  421,  35  Pac.  131; 
Powell  v.  Nolan,  27  Wash.  318,  67  Pac.  712,  68  Pac.  389; 
State  ex  rel.  Smith  v.  Parker,  9  Wash.  653,  38  Pac.  156; 
State  v.  Maines,  26  Wash.  160,  66  Pac.  431;  State  ex  rel. 
Fetterley  v.  Griffin,  32  Wash.  67,  72  Pac.  1030. 

127  King  County  v.  Hill,  1  Wash.  63,  23  Pac.  926 ;  Kellogg 
v.  Bradley,  3  Wash.  429,  28  Pac.  367;  State  v.  Carey,  4 
Wash.  424,  30  Pac.  729 ;  Schlaechter  v.  Miller,  4  Wash.  463, 
30  Pac.  745,  31  Pac.  595;  Clark-Harris  Co.  v.  Douthitt,  4 
Wash.  465,  30  Pac.  744;  Small  v.  Geddis,  4  Wash.  518,  30 
Pac.  746 ;  Kirby  v.  Collins,  6  Wash.  297,  32  Pac.  1060 ;  Holm 
v.  Gilchrist,  7  Wash.  615,  34  Pac.  1102 ;  Taylor  v.  City  Coun- 
cil of  Tacoma,  15  Wash.  92,  45  Pac.  641;  State  v.  Zettler, 
15  Wash.  625,  47  Pac.  35;  State  v.  Pittam,  32  Wash.  137, 
72  Pac.  1042;  Demaris  v.  Barker,  33  Wash.  200,  74  Pac. 


§  112      BILLS   OP   EXCEPTIONS  AND   STATEMENTS   OP   PACTS.      212 

The  following  certifications  have  been  held  suffi- 
cient: 

On  appeal  from  an  order  fixing  the  compensation 
of  a  receiver,  a  certificate  which  stated  that  the  bill 
or  statement  contains  all  the  material  facts  in  the  pro- 
ceeding to  determine  the  compensation  of  the  re- 
ceiver.128 

A  similar  certification  has  been  held  to  be  sufficient 
under  the  present  statutes.12' 

A  certification  that  the  statement  of  facts  includes 
all  of  the  material  evidence  "except  that  there  is 
omitted  from  said  statement  of  facts  all  evidence  which 
refers  solely  to  the  kind,  quality,  physical  condition, 
fertility,  productivity,  salability,  and  value  of  the  lands 
and  premises  mentioned  in  the  pleadings  in  this 
cause."  13° 

The  following  certification  has  also  been  held  to 
be  sufficient: 

362 ;  Caughey  v.  Rien,  37  Wash.  296,  79  Pac.  925 ;  State  ex 
rel.  Miller  v.  Seattle,  45  Wash.  691,  89  Pac.  152;  Ness  v. 
Bothell,  53  Wash.  27,  101  Pac.  702 ;  Collins  v.  Seattle,  2  Wash. 
Ter.  354,  7  Pac.  857;  Case  v.  Ham,  9  Wash.  54,  36  Pac.  1050; 
Zenkner  v.  Northern  Pacific  R.  R.  Co.,  3  Wash.  Ter.  60,  14 
Pac.  596. 

128  Tompson  v.  Huron  Lumber  Co.,  5  Wash.  527,  32  Pac. 
536. 

129  Bruce  v.  Foley,  18  Wash.  96,  50  Pac.  935. 

130  Smith  v.  Glenn,  40  Wash.  262,  82  Pac.  605.     The  court 
in  its  opinion  in  the  above  case  said:  "The  evidence  thus 
excluded  had  to  do  with  an  issue  of  fact  upon  which  the 
trial  court  found  in  favor  of  appellants.     Said  issue  is  in 
no  manner  involved  in  the  case  as  it  comes  before  us  on  ap- 
peal.    Hence,  it  was  not  necessary  to  bring  up  said  evidence. 
The  practice  of  eliminating  all  evidence  except  such  as  is 
material  to  the  issues  triable  in  this  court  is  to  be  commended. 
The  motion  to  strike  the  statement  is  denied." 


213  CERTIFICATION   OF   BILL   OB   STATEMENT.  §  113 

"I  hereby  certify  that  the  above  and  foregoing  has 
been  this  day  settled  by  me  as  the  proper  statement 
of  facts  in  the  above-entitled  cause,  to  wit,  Miller  et 
al.  v.  Reed  et  al.,  and  I  hereby  certify  that  the  same 
is  the  proper  statement  of  facts  in  said  cause,  and  the 
above  statement  contains  all  the  evidence  taken  in  said 
cause."  131 

It  has  also  been  held  that  a  certificate  is  suflScient 
when  it  certifies  that  the  bill  or  statement  contains 
all  the  material  facts,  including  all  exhibits  in  the 
case;  and  that  it  is  not  necessary  that  the  certificate 
should  state  that  the  bill  or  statement  contains  all 
the  testimony  on  which  the  cause  was  tried,  together 
will  all  objections  or  exceptions  taken  to  the  reception 
or  rejection  of  testimony.132 

A  similar  certification  was  held  to  be  sufficient  under 
the  present  statutes.183 

§  113.  Whether  the  Prescribed  Form  of  the  Cer- 
tificate may  be  Changed  or  Varied  for  Any  Purpose 
Whatever. — Since  the  statute  has  prescribed  the  forms 
which  must  be  used  in  the  certification  of  the  bill 
or  statement,  it  follows  that  the  certificate  cannot  be 
legitimately  employed  for  the  purpose  of  supplying 
defects  in  the  record,  or  for  the  purpose  of  supplying 
matters  which  have  been  omitted  from  the  body  of  the 
bill  or  statement,  or  for  the  purpose  of  evidencing  any 
collateral  matters  whatever. 

The  statutes  contemplate  that  all  material  facts, 
matters  and  proceedings  occurring  in  the  cause,  and 

131  Miller  v.  Washington  Savings  Bank,  5  Wash.  200,  31 
Pac.  712. 

132  Doyle  v.  McLeod,  4  Wash.  732,  31  Pac.  96. 

133  Phillips  v.  Port  Townsend  Lodge  No.  6,  F.  &  A.  M.,  8 
Wash.  529,  36  Pac.  476.     See,  also,  Bank  of  Shelton  v.  Willey, 
7  Wash.  535,  35  Pac.  411. 


§  113      BILLS  OP   EXCEPTIONS   AND   STATEMENTS   OF   PACTS.      214 

not  already  a  part  of  the  record,  shall  be  inserted  in 
the  body  of  the  bill  or  statement;  and  that  the  forms 
of  the  certificate  shall  be  simply  those  which  the  stat- 
ute has  prescribed. 

Thus,  it  has  been  held  that  the  certificate  cannot 
be  used  for  the  purpose  of  proving  that  notice  of  the 
settlement  and  certification  of  the  bill  or  statement 
had  been  served,  as  the  proof  of  service  should  be 
shown  by  the  transcript,  or  at  least  in  the  body  of 
the  bill  or  statement.1" 

In  the  above  case,  however,  a  record  showing  ser- 
vice had  been  supplied,  but  had  escaped  observation 
owing  to  the  fact  that  it  was  not  bound  with  the  rest 
of  the  transcript;  and  such  appearing  to  be  the  case, 
the  order  striking  the  bill  or  statement  for  want  of 
notice  of  the  settlement  and  certification  was  revoked 
on  hearing. 

But  in  a  later  case  where  the  certificate  recited 
that  the  appellant  served  notice  on  respondents  on 
a  given  date  that  an  application  would  be  made  to 
the  court  at  a  specified  time  for  an  order  extending  the 
time  for  filing  a  proposed  statement  of  facts  on  appeal, 
it  was  assumed  that  proof  of  the  service  of  the  notice 
was  sufficiently  shown.135 

In  the  above  case,  however,  the  respondents  ad- 
mitted the  service  in  their  brief;  and  thus  the  recital 
in  the  certificate  became  unimportant. 

Thus,  also,  a  recital  in  a  certificate  "that  the  find- 
ings of  fact  and  conclusions  of  law  hereto  attached 
were  the  ones  proposed  by  defendants  and  rejected 

184  Ward  v.  Tucker,  7  Wash.  399,  35  Pac.  126,  1086,  and 
on  rehearing. 

"5  G-aller  v.  McMahon,  51  Wash.  473,  99  Pac.  309. 


215  CERTIFICATION   OF   BILL   OB   STATEMENT.  §  113 

and  refused  by  the  court,  and  exception  allowed 
thereto,"  is  not  evidence  of  the  matters  recited.1" 

In  an  early  case  it  is  also  intimated  that  a  certificate 
may  evidence  an  objection  to  matters  included  in  the 
bill  or  statement.187 

Thus  again,  the  court  has  held  that  the  certificate 
cannot  be  used  for  the  purpose  of  making  a  finding 
of  fact.138 

In  another  early  case  it  was  said  that  where  the 
certificate  of  the  judge  to  a  statement  of  facts  cer- 
tifies that  the  regular  notice  had  been  given  of  the 
settlement  at  a  certain  time  and  place,  and  that  such 
settlement  had  been  adjourned  to  another  day  and 
place,  the  fact  that  settlement  was  adjourned  by  order 
of  the  court  is  prima  facie  established,  although  the 
order  does  not  appear  in  the  record.139 

But  this  was  clearly  dictum,  for  the  court  later  said: 
''Besides,  there  has  been  an  additional  transcript  filed, 
which  supplies  the  defect  in  said  record  as  to  the 
entry  of  said  order." 

In  another  early  case  it  was  held  that  the  certificate 
might  be  used  for  the  purpose  of  identifying  the  state- 
ment as  belonging  to  a  particular  cause.140 

It  was  also  held  in  an  early  case  that  when  the 
judge  certifies  that  the  statement  was  settled  and 
certified  "in  the  presence  of  the  attorneys  of  the  re- 
spective parties,"  such  recital  in  the  certificate  is  con- 

136  Pederson  v.  Ullrich,  50  Wash.  211,  96  Pac.  1044. 
187  See  United  States  Savings  etc.  Co.  v.  Jones,  9  Wash. 
434,  37  Pac.  666. 

138  Christofferson  v.  Pfennig,  16  Wash.  491,  48  Pac.  264. 

139  Doyle  v.  McLeod,  4  Wash.  732,  31  Pac.  96. 

140  Haas  v.  Gaddis,  1  Wash.  89,  23  Pac.  1010. 


§  113      BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OP   FACTS.      216 

elusive  of  the  fact  that  want  of  notice  of  the  time  and 
place  of  settling  the  statement  was  waived.141 

It  was  also  held  in  an  early  case  that  a  certificate 
with  a  similar  recital  in  it  is  conclusive  of  the  fact 
that  a  defective  notice  of  the  time  of  settlement  was 
waived.142 

In  a  comparatively  recent  case  it  was  said  that  where 
the  certificate  of  the  trial  judge,  attached  to  a  state- 
ment of  facts,  recites  that,  at  the  time  of  the  signing 
and  certifying  of  the  statement,  the  plaintiffs  and  re- 
spondents appeared  by  their  attorneys,  and  consented 
to  the  certifying  and  signing  of  the  same,  that  fact 
in  itself  constitutes  a  persuasive  argument  against  the 
granting  of  a  motion  to  strike  the  bill  or  statement 
upon  the  ground  that  notice  of  the  filing  and  notice 
of  the  settlement  of  the  bill  or  statement  were  not 
given.143 

But  in  this  case,  also,  it  appears  that  a  supplemental 
transcript  was  prepared  and  duly  filed,  and  that  such 
supplemental  transcript  showed  the  filing  of  the  state- 
ment of  facts  and  the  service  thereof  on  the  respond- 
ents, as  well  as  the  proof  of  due  service  of  the  notices. 
What  was  said  regarding  the  right  of  the  judge  to 
evidence  a  waiver  by  a  recital  in  the  certificate  is, 
therefore,  unimportant. 

In  a  case  where  an  affidavit  of  an  appellant,  alleging 
that  certain  remarks  were  made  by  counsel  of  the  pros- 
ecuting witness  in  his  closing  address  to  the  jury,  was 
made  a  part  of  the  bill  or  statement,  it  was  said  that  the 
certificate  should  certify  that  the  things  alleged  in 

141  Dittenhoefer  v.  Coeur  d'Alene  Clothing  Co.,  4  Wash. 
519,  30  Pac.  660. 

142  Boyer  v.  Boyer,  4  Wash.  80,  29  Pac.  981. 

14«  Johnston  v.  Gerry,  34  Wash.  524,  76  Pac.  258,  77  Pac. 
503. 


217  CEBTIFICATION   OF   BILL   OR   STATEMENT.  §  114: 

the  affidavit  occurred  at  the  trial,  and  that  since  the 
certificate  failed  to  so  certify  the  affidavit  would  not 
be  considered.  The  certificate  in  this  case  was  evi- 
dently framed  in  full  compliance  with  the  statutory 
provisions ;  and  the  court  no  doubt  meant  that  the  body 
of  the  bill  or  statement  should  show,  over  the  certificate 
of  the  judge,  that  the  things  alleged  in  the  affidavit 
occurred  at  the  trial.  The  matters  alleged  in  the  affi- 
davit should,  no  doubt  have  been  disregarded;  not  be- 
cause the  certificate  was  defective,  but  because  the  bill 
or  statement  was  not  properly  prepared.  It  is  not  the 
province  of  the  certificate  to  cure  defects  in  the  body 
of  the  bill  or  statement.14* 

In  a  later  case  the  certificate  was  employed  for  the 
purpose  of  certifying  that  certain  exhibits  formed  no 
part  of  the  evidence  introduced  at  the  trial.  If  they 
formed  no  part  of  the  evidence,  they  should  have 
simply  been  entirely  disregarded.145 

The  material  facts,  matters  and  proceedings  oc- 
curring in  the  cause,  and  not  already  a  part  of  the 
record,  should  be  embodied  in  the  body  of  the  bill  or 
statement,  and  not  in  the  certificate.  Thus,  the  fact 
that  a  party  was  present  at  the  time  when  the  findings 
were  settled,  and  that  he  argued  the  same,  is  properly 
shown  by  a  recital  of  the  fact  in  the  body  of  the  bill 
or  statement.146 

§  114.  When  the  Judge  may  Correct  or  Supple- 
ment His  Certificate. — The  judge  may  correct  or  sup- 

144  See  State  v.  McGonigle,  14  Wash.  594,  45  Pac.  20. 
146  See  North  Star  Trading  Co.  v.  Alaska- Yukon-Pacific 
Exposition,  63  Wash.  376,  115  Pac.  855. 

146  See  Eeilley  v.  Anderson,  33  Wash.  58,  73  Pac.  799. 


§  114      BILLS   OF   EXCEPTIONS   AND   STATEMENTS   OF   FACTS.      218 

plement  his  certificate  according  to  the  fact  at  any 
time  before  an  appeal  is  heard.147 

But  the  certificate  cannot  be  corrected  or  sup- 
plemented after  the  appeal  has  been  heard.148 

Thus,  after  the  dismissal  of  an  appeal  one  cannot 
have  the  cause  reinstated  for  the  purpose  of  obtaining 
a  correction  of  the  certificate,  and  especially  when  a 
petition  for  rehearing  is  pending.  It  is  then  too 
late.149 

Nor  will  the  supreme  court  permit  the  bill  or  state- 
ment to  be  withdrawn  for  the  purpose  of  correcting 
the  contents  thereof,  and  of  obtaining  a  recertification 
accordingly.160 

In  an  early  case  the  court  granted  a  reasonable  time 
within  which  to  obtain  the  proper  identification  of  the 
bill  or  statement  by  the  clerk  of  the  lower  court,  even 
when  the  objection  was  raised  for  the  first  time  at 
the  hearing  of  the  appeal ;  and  upon  the  same  principle, 
no  doubt,  the  court  would  permit  the  bill  or  state- 
ment to  be  withdrawn  for  the  purpose  of  obtaining  a 
proper  certificate  where  the  objection  is  raised  for  the 
first  time  at  the  hearing  of  the  appeal,  and  where  per- 
mission to  withdraw  it  for  the  purpose  of  obtaining 
a  proper  certificate  is  promptly  requested.181 

147  Rem.  &  Bal.  Code,  §  391.     See  §  12,  supra;  In  re  Hol- 
burte's  Estate,  38   Wash.   199,   80  Pac.  294;   State  ex  rel. 
Klein  v.  Superior  Court,  36  Wash.  44.  78  Pac.  137;  Little- 
John  v.  Miller,  5  Wash.  399,  31  Pac.  758 ;  State  ex  rel.  Hersner 
v.  Arthur,  7  Wash.  358,  25  Pac.  120. 

148  Boyer  v.  Boyer,  4  Wash.  80,  29  Pac.  981. 

148  Clark-Harris  Co.  v.  Douthitt,  5  Wash.  96,  31  Pac.  422. 

150  Eicholtz  v.  Holmes,  6  Wash.  297,  34  Pac.  151. 

151  See  Puget '  Sound  Iron  Co.  v.  Worthington,  2  Wash. 
Ter.  472,  7  Pac.  882,  886. 


219  CERTIFICATION   OF   BILL   OR   STATEMENT.  §  115 

§  115.  What  is  Meant  by  the  Correction  or  Supple- 
menting of  the  Certificate. — The  correction  or  supple- 
menting of  the  certificate  may  be  defined  to  be  the  act 
of  making  an  erroneously  framed  authentication  agree 
with  the  form  prescribed  by  the  statutes. 

The  word  * '  certificate ' '  simply  means  the  authentica- 
tion of  the  judge,  as  contradistinguished  from  the  body 
or  contents  of  the  bill  or  statement.  This  is  manifest 
from  the  following  statutory  provision  upon  the  sub- 
ject which  at  all  time,  carefully  preserves  the  distinc- 
tion: 

"The  certificate  shall  be  signed  by  the  judge,  but 
need  not  be  sealed ;  and  thereupon  all  the  matters  and 
proceedings  embodied  in  the  bill  of  exceptions  or  state- 
ment of  facts,  as  the  case  may  be,  shall  become  and 
thenceforth  remain  a  part  of  the  record  in  the  cause, 
for  all  the  purposes  thereof  and  of  any  appeal  therein. 
The  judge  may  correct  or  supplement  his  certificate  ac- 
cording to  the  fact,  at  any  time  before  an  appeal  is  heard. 
And  if  the  judge  refuse  to  settle  or  certify  a  bill  of  ex- 
ceptions or  statement  of  facts,  or  to  correct  or  supple- 
ment his  certificate  thereto,  in  a  proper  case,  he  may 
be  compelled  so  to  do  by  a  mandate  issued  out  of  the 
supreme  court,  either  pending  an  appeal  or  prior 
thereto."1" 

The  infinitive  "to  correct"  means  to  make  right  or 
proper. 

The  infinitive  "to  supplement"  means  to  add  to  a 
thing  until  it  shall  have  become  complete.  It  implies 
an  imperfection  arising  from  omission. 

The  word  "fact"  means  a  thing  done;  that  which 
has  been  produced;  the  condition  of  the  certificate. 

The  word  "fact"  refers  to  the  authentication  of  the 
judge,  and  not  to  the  contents  of  the  bill  or  statement. 

162  Rem.  &  Bal.  Code,  §  391.     See  §  12,  supra. 


§  115      BILLS   OF   EXCEPTIONS   AND   STATEMENTS   OF   FACTS.      220 


The  word  employed  is  the  singular  "fact,"  and  not  the 
plural  "facts." 

But  admitting  that  the  word  * '  fact ' '  should  be  under- 
stood as  meaning  "facts,"  and  as  referring  to  the  body 
or  contents  of  the  bill  or  statement,  still  this  plain 
rule  of  the  statutes  would  not  be  affected  in  the  least. 

One  of  the  principal  objects  of  the  statutes  is  to 
produce  a  bill  or  statement  which  will  be  perfect 
as  to  its  contents,  and  one  which  will,  therefore,  con- 
form to  and  agree  with  a  perfect  certificate;  and  in 
providing  for  the  correction  or  supplementing  of  the 
certificate,  they  should  be  considered  a.s  having  some 
useful  end  in  view,  and  to  that  end  should  be  under- 
stood as  assuming  that  the  contents  of  the  bill  or  state- 
ment are  perfect,  and  as  conferring  upon  the  judge 
the  power  to  correct  or  supplement  his  certificate  ac- 
cording to  such  standard  of  perfection;  for  a  correction 
or  supplementing  implies  a  standard  of  perfection,  and 
assumes  a  state  of  imperfection  in  that  which  is  to  be 
corrected  or  supplemented. 

From  either  point  of  view  the  rule  itself  would 
be  unaffected;  for,  the  word  "fact"  being  understood 
as  referring  to  the  authentication  of  the  judge,  it  neces- 
sarily refers  to  its  imperfections;  for  if  imperfection 
does  not  exist,  there  can  be  no  occasion  for  correcting 
or  supplementing. 

The  prepositional  phrase  "according  to  the  fact" 
therefore  means  according  to  the  condition  of  the  cer- 
tificate; that  is,  according  as  the  certificate  needs  cor- 
recting or  supplementing. 

And  finally,  the  correction  or  supplementing  of  the 
certificate  according  to  the  fact  means  the  act  of  mak- 
ing an  erroneously  framed  certificate  or  authentication 
agree  with  the  form  prescribed  by  statute,  either  by 
correcting  errors  appearing  upon  the  face  of  the  cer- 


221  CERTIFICATION   OP   BILL   OR   STATEMENT.  §  115 

tificate,  or  by  adding  that  which  has  been  omitted  ac- 
cording to  the  condition  of  the  certificate. 

To  correct  or  supplement  the  certificate  cannot  logi- 
cally mean  the  act  of  changing  a  certificate  which  is 
perfect  in  its  form  to  one  which  is  imperfect  in  form, 
in  order  that  it  may  thus  be  made  to  conform  to  what 
is  conceived  to  be  an  imperfect  bill  or  statement;  for 
such  an  act  is  antagonistic  to  the  statutory  provision 
prescribing  the  form  of  the  certificate,  and  the  so-called 
correction  or  supplementing  must  necessarily  result  in 
rendering  the  certificate  incorrect,  and  therefore  in- 
effectual. 

The  utter  futility  of  such  a  theory,  and  the  conse- 
quent disastrous  result  of  its  application,  is  well  il- 
lustrated in  the  case  of  In  re  Holburte's  Estate,  38 
Wash.  199,  80  Pac.  294. 

In  the  above  case  no  amendments  were  proposed; 
and,  after  the  time  for  proposing  amendments  had 
expired,  the  judge  certified  that  the  statement  "  con- 
tains all  the  material  facts,  matters  and  proceedings 
heretofore  occurring  in  the  cause, ' '  etc. 

Thereafter  the  respondent  succeeded  in  persuading 
the  judge  to  change  his  certificate,  and  to  certify  that 
* '  the  above  and  foregoing  matters  and  things  are  mat- 
ters and  proceedings  occurring  in  said  cause  and  the 
same  are  hereby  made  a  part  of  the  record  herein."  * 

The  supreme  court  recognized  the  power  of  the  lower 
court  or  judge  to  make  the  so-called  correction  by 
changing  the  certificate  which  was  perfect  in  its  form 
to  one  which  was  imperfect  in  form,  in  order  that  it 
might  thus  be  made  to  conform  to  what  was  conceived 
to  be  an  imperfect  bill  or  statement;  but  it  refused  to 
consider  the  bill  or  statement,  for  the  reason  that  the 
correction  of  the  certificate  necessarily  resulted  in 


§  115      BILLS   OP  EXCEPTIONS   AND   STATEMENTS   OF   PACTS.      222 

rendering  the  certificate  incorrect,  and  therefore  inef- 
fectual. 

A  correction  which  renders  that  which  has  been  cor- 
rected incorrect  is  an  impossibility,  and  therefore  not 
within  the  contemplation  of  the  statutes. 

The  correction  or  supplementing  of  the  certificate 
according  to  the  fact  means,  therefore,  the  act  of  mak- 
ing an  erroneously  framed  certificate  or  authentication 
agree  with  the  form  prescribed  by  statute,  either  by 
correcting  errors  appearing  upon  the  face  of  the  cer- 
tificate, or  by  adding  that  which  has  been  omitted,  ac- 
cording to  the  condition  of  the  certificate. 

The  decision  would,  no  doubt,  be  rejected  by  the 
court  as  at  present  constituted;  and  the  author  is 
obliged  to  agree  with  the  dissenting  opinion  of  Justice 
Eudkin,  which  reads  as  follows: 

"By  failing  to  propose  amendments  to  the  state- 
ment of  facts  at  the  time  and  in  the  manner  provided 
by  law,  the  respondent  waived  all  objections  thereto, 
and  should  not  thereafter  be  heard  to  complain  that 
the  statement  does  not  contain  all  the  material  facts, 
either  in  this  court  or  in  the  court  below.  To  permit 
a  respondent  to  withhold  his  objections  or  amendments 
at  the  proper  time,  and  thereafter  defeat  the  appeal 
by  procuring  a  change  in  the  certificate  of  the  trial 
judge,  is  a  travesty  on  justice  which  I  cannot  sanction. 
I  think  the  change  in  the  certificate  was  in  derogation 
of  law  and  justice,  and  should  be  utterly  ignored  by  this 
court.1' 

The  rule  as  announced  by  the  court  in  the  above 
case  is,  however,  in  accord  with  former  ideas  of  the 
court  upon  the  subject.163 

153  See  State  ex  rel.  Hersner  v.  Arthur,  7  W<osh.  358,  35 
Pac.  120;  Warburton  v.  Ralph,  9  Wash.  537,  38  Pac.  140; 
State  ex  rel.  Smith  v.  Parker,  9  Wash.  653,  38  Pac.  158.  See, 


223  CERTIFICATION   OF   BILL   OR   STATEMENT.  §  116 

The  statute  unquestionably  contemplates  that  the 
judge  shall  not  have  the  right  in  any  case  to  make  an 
imperfect  certificate.  If,  in  any  particular  case,  the 
judge  should  feel  that  he  should  not  sign  a  perfect  cer- 
tificate, he  should  refuse  to  sign  any.  His  right  to 
refuse  to  sign  a  perfect  certificate  may  then  be  tested 
by  mandamus;  for  the  judge  may  in  many  instances 
be  justified  in  not  signing  a  perfect  certificate,  as 
where,  for  example,  the  bill  or  statement  has  not  been 
filed  and  served  within  the  time  prescribed  by  statute, 
and  in  many  other  instances  which  might  be  men- 
tioned, but  which  will  readily  occur  to  the  reader  with- 
out any  special  mention.  But  of  one  thing,  however, 
there  can  be  no  serious  doubt,  namely,  that  it  is  the. 
duty  of  the  judge  either  to  sign  a  perfect  certificate  or 
to  refuse  to  sign  any.15* 

§  116.  Whether  Supplemental  Bills  of  Exceptions  or 
Statements  of  Facts  are  Permitted. — The  only  supple- 
menting which  the  statutes  allow  is  the  supplementing 
of  the  certificate — a  subject  which  has  been  considered 
in  the  preceding  section.  A  statement  of  facts  is  an 
indivisible  entity,  and  so  is  a  bill  of  exceptions.  Each 
may  relate  to  one  or  more  orders,  but  a  partition  of 
the  office  of  either  is  not  provided  for;  and  therefore 
a  supplemental  bill  of  exceptions  or  a  supplemental 
statement  of  facts  cannot,  scientifically  speaking,  have 
any  existence.  Aside  from  this,  however,  the  statutes 
provide  against  the  necessity  of  supplemental  bills  of 
exceptions  or  statements  of  facts  by  allowing  ample 
time,  in  the  first  instance,  for  the  filing  and  service  of 
the  proposed  bill  or  statement,  and  by  permitting, 

also,  State  ex  rel.  Klein  v.  Superior  Court,  36  Wash.  44,  78 
Pac.  137. 

164  See  Jones  v.  Jenkins,  3  Wash.  17,  27  Pac.  1022. 


§  116      BILLS   OP   EXCEPTIONS  AND   STATEMENTS   OP   FACTS.      224 

when  occasion  requires,  an  extension  of  sixty  addi- 
tional days,  and  finally  an  additional  ten  days  for  the 
proposal  of  amendments.  This  is  all  that  could  rea- 
sonably be  expected  for  the  preparation  of  a  proper 
bill  or  statement,  and  is,  in  fact,  a  liberal  allowance  of 
time. 

To  allow,  in  addition  to  this,  the  filing  and  service 
of  supplemental  bills  or  statements  would  be  to  nullify 
the  statutory  provisions  limiting  the  time  within  which 
bills  of  exceptions  and  statements  of  facts  must  be 
filed  and  served.  They  are  not,  therefore,  contem- 
plated by  the  statutes.165 

But  in  a  later  case  it  was  held  that  where  essential 
matters  have  been  omitted  from  the  proposed  bill  or 
statement,  it  may  be  corrected  by  a  supplemental  bill 
or  statement  at  any  time  before  the  hearing  of  the 
cause  on  appeal,  and  that  the  judge  will  be  compelled 
by  mandate  to  certify  such  supplemental  bill  or  state- 
ment.186 

In  this  case  the  court  said :  ' '  It  seems  to  us  that  this 
case  falls  squarely  within  the  provisions  of  section 
5060,  Ballinger's  Code,  which  specially  provides  that 
the  judge  may  correct  or  supplement  his  certificate 
according  to  the  fact,  at  any  time  before  an  appeal  is 
heard;  and  further  provides  that,  if  the  judge  re- 
fuse to  settle  or  certify  a  bill  of  exceptions  or  state- 
ment of  facts,  or  to  correct  or  supplement  his  cer- 
tificate thereto,  in  a  proper  case,  he  may  be  compelled 
so  to  do  by  a  mandate  issued  out  of  the  supreme 

155  See  In  re  Guardianship  of  Hill's  Heirs,  7  Wash.  421, 
35  Pac.  131.     See,  also,  Warburton  v.  Ralph,  9  Wash.  537, 
38  Pac.  140;  State  ex  rel.  Hersner  v.  Arthur,  7  Wash.  358, 
35  Pac.  120. 

156  State  ex  rel.  Klein  v.  Superior  Court,  36  Wash.  44,  78 
Pac.  137. 


225  CERTIFICATION   OF   BILL   OR   STATEMENT.  §  116 

court,  either  pending  an  appeal  or  prior  thereto.  It 
appears  that,  in  some  of  the  cases  heretofore  decided 
by  this  court,  this  provision  of  the  statute  has  not 
been  enforced,  but  it  was  because  it  was  not  called 
to  the  attention  of  the  court  in  the  determination  of 
those  causes.  But  the  statute  is  certainly  plain  and 
explicit,  and  seems  to  have  been  enacted  to  meet  just 
such  a  case  as  the  one  that  is  presented  here.  It  is 
conceded  that  the  statement  on  appeal  is  not  the 
correct  statement,  and  is  not  one  upon  which  this 
court  could  properly  review  the  action  or  discretion 
of  the  lower  court  in  passing  upon  the  motion  for 
a  new  trial.  The  application  is  made  before  the  ap- 
peal is  heard,  and,  falling  within  the  plain  provisions 
of  the  statute,  the  motion  must  be  sustained,  and  re- 
spondent will  be  awarded  the  relief  asked  for." 

The  respondent  in  the  case  had  evidently  failed  to 
propose  amendments  within  the  time  prescribed  by 
statute;  and  was  thus  enabled  to  accomplish  indi- 
rectly, by  means  of  a  supplemental  bill  or  statement, 
what  he  could  not  accomplish  by  means  of  proposed 
amendments  directly,  namely,  the  amendment  of  the 
bill  or  statement  after  the  time  for  proposing  amend- 
ments had  long  expired. 

This  is  merely  allowing  a  supplemental  bill  or  state- 
ment to  be  filed  and  served  long  after  the  expiration 
of  the  statutory  period  for  the  filing  and  service  of 
the  original  bill  or  statement  and  proposed  amend- 
ments thereto,  on  the  authority  of  a  statutory  pro- 
vision which  merely  allows  a  certificate  to  be  cor- 
rected or  supplemented. 

Much  is  said  in  the  decision  about  the  supplement- 
ing of  a  certificate,  but  that  which  was  actually  in- 
volved and  allowed  in  the  cause  was  the  filing  and 

15 


§  117      BILLS  OP  EXCEPTIONS  AND   STATEMENTS  OP  FACTS.      226 

service  of  a  purported  supplemental  statement.  The 
decision  is  clearly  out  of  harmony  with  the  statutory 
provision  limiting  the  time  for  the  filing  and  service 
of  the  original  bill  or  statement  and  the  proposed 
amendments  thereto.  It  is  also  in  direct  conflict  with 
the  case  first  cited  in  this  section. 

§  117.  The  Remedies  to  Which  a  Complaining 
Party  may  Resort. — The  remedies  to  which  a  com- 
plaining party  may  resort  may  be  divided  into  two 
classes,  namely,  first,  those  remedies  which  exist  by 
virtue  of  the  statutes;  and,  secondly,  those  remedies 
which  owe  their  existence  to  the  approval  of  the  court. 
The  statutory  remedies  are  those  of  mandamus  and 
prohibition,  the  former  being  expressly  provided  for, 
and  the  latter  by  necessary  implication.  The  remedies 
which  owe  their  existence  to  the  approval  of  the  court 
are  motions  made  to  the  supreme  court  in  the  first 
instance,  and  based  upon  various  grounds,  to  strike 
the  bill  or  statement  from  the  cause.  These  remedies 
will  now  be  considered  in  their  order;  and  first,  with 
reference  to 

§  118.  The  Remedy  of  Mandamus.— The  statute 
provides  that  "the  judge  may  correct  or  supplement 
his  certificate  according  to  the  fact,  at  any  time  before 
an  appeal  is  heard.  And  if  the  judge  refuse  to  settle 
or  certify  a  bill  of  exceptions  or  statement  of  facts, 
or  to  correct  or  supplement  his  certificate  thereto,  in 
a  proper  case,  he  may  be  compelled  so  to  do  by  a 
mandate  issued  out  of  the  supreme  court,  either  pend- 
ing an  appeal  or  prior  thereto. ' ' 1ST 

It  is  self-evident  that  "a  proper  case"  for  mandamus 
is  a  proper  bill  or  statement,  a  proper  judge  by  whom 

187  Rem.  &  Bal.  Code,  §  391.     See  §  12,  supra. 


227  CERTIFICATION   OF   BILL   OR   STATEMENT.  §  118 

it  may  be  certified,  and  a  refusal  on  the  part  of  the 
judge  to  certify;  and  since  it  has  been  the  object  of  the 
preceding  pages  to  explain  what  constitutes  a  proper 
bill  or  statement,  and  to  indicate  the  judge  by  whom 
it  may  be  certified,  a  repetition  of  the  rules  there 
given  could  hardly  be  desired  or  expected.  The  au- 
thor will  therefore  proceed  to  note  those  cases  wherein 
those  rules  have  been  enforced,  and  thus  illustrate 
the  practical  working  of  this  statutory  remedy. 

Thus,  a  resident  judge  may  extend  the  time  for  the 
filing  and  service  of  the  bill  or  statement,  even  though 
the  cause  was  tried  by  a  nonresident  judge;  and  when 
the  bill  or  statement  has  been  filed  and  served  within 
the  time  allowed  by  the  order  of  extension,  the  nonresi- 
dent judge  may  be  compelled  to  certify  it  where  his 
only  reasons  for  refusing  to  certify  are  that  the  res- 
ident judge  had  no  authority  to  extend  the  time  for 
the  filing  and  service,  that  the  time  had  not  been  ex- 
tended by  himself,  and  that  the  statutory  period  for 
the  filing  and  service  of  the  bill  or  statement  has  ex- 
pired.158 

The  judge  is  not  justified  in  refusing  to  certify  the 
bill  or  statement  because  "the  transcript  is  not  before 
this  court,  and  cannot  be  certified  to  by  this  court 
until  the  usual  and  customary  course  is  pursued  by 
the  relator  of  paying  (as  he  should  have  done  in  the 
first  place)  the  proper  fees  of  the  stenographer,  ob- 
taining his  report,  and  presenting  it  to  this  court  for 
certification";  and  when  no  other  reason  is  assigned 
for  his  refusal,  he  will  be  compelled  to  certify  the  bill 
or  statement  by  a  writ  of  mandate.169 

158  State  ex  rel.  Bickford  v.  Benson,  21  Wash.  365,  58  Pac. 
217. 

158  State  ex  rel.  Quade  v.  Allyn,  2  Wash.  470,  27  Pac.  233 


§  118      BILLS   OP   EXCEPTIONS  AND   STATEMENTS   OF   FACTS.      228 

While  mandamus  is  the  proper  remedy  to  compel  the 
judge  to  certify  a  proper  bill  or  statement,  he  is  en- 
titled to  a  reasonable  time,  at  least,  for  deliberation; 
and  where  there  has  been  no  unreasonable  delay,  a 
return  of  the  judge  stating  that  he  had  not  acted  for 
want  of  time  to  consider  the  bill  or  statement,  and 
that  he  had  not  refused  to  certify,  the  writ  will  be 
denied,  even  though  the  bill  or  statement  had  been 
settled  by  the  implied  agreement  of  the  parties.160 

Reports  of  referees  or  commissioners,  with  the  tes- 
timony and  other  evidence  returned  into  court  there- 
with, must  be  returned  by  the  referees  or  commissioners 
in  order  to  be  made  a  part  of  the  record  by  the  filing 
thereof.  If  transcribed  and  filed  by  one  of  the  parties, 
they  do  not  thereby  become  a  part  of  the  record,  and 
in  such  a  case  should  be  embodied  in  a  bill  of  excep- 
tions or  statement  of  facts.  When,  therefore,  the 
judge  refuses  to  embody  in  the  bill  or  statement  such 
material  matters  which  properly  belong  therein,  he 
may  be  compelled  to  do  so  by  a  writ  of  mandate;  and 
the  contention  that  they  are  already  a  part  of  the 
record  will  not  be  sustained.  Nor  will  the  fact  that 
the  trial  judge  has  already  certified  a  bill  or  statement 
which  does  not  embody  such  matters,  be  a  defense  to 
the  application  for  the  writ.161 

Mandamus  is  the  proper  remedy  to  prevent  the  judge 
from  inserting  in  the  bill  or  statement  matters  which 
did  not  occur  in  the  cause  by  requiring  him  to  certify 
a  bill  or  statement  which  does  not  embody  the  objec- 
tionable matters.182 

160  State  ex  rel.  Miles  v.  Superior  Court,  13  Wash.  514, 
43  Pac.  636. 

161  State  ex  rel.  Richardson  v.  Superior  Court,  41  Wash. 
439,  83  Pac.  1027. 

162  In  re  Rosner,  5  Wash.  488,  32  Pac.  106.     See,  also,  the 
following  cases  where  the  remedy  was  not  invoked  and  where 


229  CERTIFICATION   OP   BILL   OR   STATEMENT.  §  118 

Alleged  error  of  the  judge  in  amending  the  proposed 
bill  or  statement  before  settlement  will  not  be  con- 
sidered unless  the  proper  remedy  of  mandamus  is  in- 
voked.163 

The  mere  taking  of  exceptions  to  the  act  of  the  judge 
in  excluding  from  the  bill  or  statement  matters  which 
are  considered  to  be  material  and  to  properly  belong 
therein  will  be  of  no  avail.  The  remedy  of  mandamus 
should  be  invoked  in  such  a  case.164  . 

Where  the  statutory  remedy  of  mandamus  is  not 
invoked,  and  the  judge  refuses  to  certify  a  bill  or 
statement  which  has  been  agreed  upon  by  the  parties, 
but  prepares  and  certifies  one  of  his  own,  the  supreme 
court  can  only  consider  the  bill  or  statement  which  is 
certified.165 

When  amendments  have  not  been  proposed,  and  the 
bill  or  statement  has  been  duly  certified,  the  judge 
will  not  be  compelled  at  the  instance  of  respondent 
to  embody  in  the  bill  or  statement  matters  which 
should  have  been  duly  submitted  by  proposed  amend- 
ments, and  to  thereafter  amend  his  certificate  to  con- 
form to  the  new  bill  or  statement.166 

It  has  been  held  in  an  early  case  that  where  the  bill 
or  statement  has  been  settled  by  the  implied  agree- 

mere  objections  to  the  insertion  of  additional  matters  were 
of  no  avail:  Anderson  v.  Northern  Pacific  Ry.  Co.,  19  Wash. 
340,  53  Pac. '345;  Doyle  v.  McLeod,  4  Wash.  732,  31  Pac.  96. 

163  Scott  v.  Bourn,  13  Wash.  471,  43  Pac.  372. 

164  See  Howe  v.  Kenyon,  4  Wash.  677,  30  Pac.  1058.     See, 
also,  Warburton  v.  Ralph,  9  Wash.  537,  38  Pac.  140. 

165  State  v.  Maines,  26  Wash.  160,  66  Pac.  431. 

166  State  ex  rel.  Hersner  v.  Arthur,  7  Wash.  358,  35  Pac. 
120.     See,  also,  Warburton  v.  Ralph,  9  Wash.  537,  38  Pac. 
140.     See,  however,  State  ex  rel.  Klein  v.  Superior  Court, 
36  Wash.  44,  78  Pac.  137.     See,  also,  In  re  Holburte's  Es- 
tate, 38  Wash.  199,  80  Pac.  294. 


§  118      BILLS  OP   EXCEPTIONS   AND   STATEMENTS   OP   FACTS.      230 

ment  of  the  parties,  mandamus  will  not  lie  to  compel 
the  judge  to  certify  in  accordance  with  the  form  pre- 
scribed by  statute  in  such  cases,  and  that  a  settlement 
by  the  parties  must  be  evidenced  by  a  written  stipula- 
tion. 

The  authority  of  the  case  on  this  subject  has,  how- 
ever, long  since  ceased,  and  the  case  is  mentioned  here 
simply  because  it  is  in  the  reports  and  relates  to  the 
subject  under  consideration.187 

Mandamus  will  lie  to  compel  the  judge  to  vacate  an 
order  striking  from  the  cause  a  bill  or  statement  which 
has  been  proposed  in  good  faith,  even  though  it  may 
not  be  a  perfect  bill  or  statement,  and  to  proceed  with 
the  settlement  and  certification  thereof  in  the  manner 
prescribed  by  the  statutes.168 

It  is  the  duty  of  the  judge  to  certify  a  proper  bill  or 
statement,  and  it  is  his  duty  to  know  whether  it  is  proper 
or  not;  and  when  he  refuses  to  certify  merely  because  a 
transcript  of  all  the  evidence,  and  all  of  the  records 
and  proceedings  had  upon  the  trial  of  the  cause,  are 
not  embodied  in  the  bill  or  statement  in  compliance 
with  the  requirements  of  an  order  previously  made, 
mandamus  will  lie  to  compel  him  to  vacate  the  order 
and  to  proceed  with  the  settlement  and  certification  in 
the  manner  prescribed  by  the  statutes.  The  judge 
should,  if  in  his  judgment  the  bill  or  statement  is  not 
a  substantial  one,  but  is  one  which  omits  a  considerable 
portion  of  the  material  facts,  matters  and  proceedings 
occurring  in  the  cause,  and  not  already  a  part  of  the 
record,  order  the  insertion  thereof  in  the  bill  or  state- 
ment, and  continue  so  to  order  until  he  can  properly 

167  See  State  ex  rel.  Smith  v.  Parker,  9  Wash.  653,  38 
Pac.  156. 

198  State  ex  rel.  Fowler  v.  Steiner,  51  Wash.  239,  98  Pac. 
609. 


231  CERTIFICATION   OP   BILL   OR   STATEMENT.  §  118 

make  his  certificate  in  the  language  of  the  statute;  and 
if  the  order  or  orders  be  not  complied  with,  the  bill 
or  statement  may  then  be  stricken,  or  its  certification 
refused.169 

The  judge  cannot  require  the  party  proposing  the 
bill  or  statement  to  procure  a  transcript  of  the  stenog- 
rapher's notes  for  the  purpose  of  aiding  him  in  his 
determination,  but  must,  from  his  own  memory,  or 
other  aids,  determine  when  and  wherein  the  bill  or 
statement  is  deficient,  and  likewise  when  it  is  suffi- 
cient; and  when  he  refuses  to  certify  because  of  his 
inability  to  accurately  determine  wherein  the  pro- 
posed bill  or  statement  is  deficient,  and  demands  or 
suggests  an  agreement  of  the  attorneys  as  to  what  is 
material,  or  the  production  of  a  transcript  of  the 
stenographer's  notes,  mandamus  will  lie  to  compel  him 
to  require  the  bill  or  statement  to  be  made  substantial, 
and  to  point  out  the  particular  defects,  and  to  strike 
the  bill  or  statement  or  refuse  to  certify  it  only  upon 
noncompliance  with  the  order  or  orders.170 

It  therefore  follows  that  when  an  order  has  been 
made  pointing  out  the  particular  defects  and  requir- 
ing the  bill  or  statement  to  be  made  substantial,  a  writ 
of  mandate  will  not  issue  to  compel  the  certification 
until  all  reasonable  demands  of  the  court  or  judge 
shall  have  been  complied  with.171 

The  time  for  an  appeal  from  an  order  or  judgment 
which  is  claimed  to  have  been  irregularly  entered  will 

109  State  ex  rel.  Roberts  v.  Clifford,  55  Wash.  440,  104 
Pac.  631. 

170  State  ex  rel.  Hofstetter  v.  Sheeks,  63  Wash.  408,  115 
Pac.  859;  State  ex  rel.  Miles  v.  Superior  Court,  13  Wash. 
514,  43  Pac.  636. 

171  State  ex  rel.  Hofstetter  v.  Sheeks,  65  Wash.  410,  118 
Pac.  308. 


§  118      BILLS   OF   EXCEPTIONS  AND    STATEMENTS   OF  FACTS.      232 

not  begin  to  run  pending  the  determination  by  the  trial 
court  of  a  motion  for  its  vacation;  and  hence,  the 
beginning  of  the  period  within  which  the  proposed  bill 
or  statement  must  be  filed  and  served  will  be  post- 
poned until  such  motion  shall  have  been  disposed  of; 
that  is,  until  the  entry  of  the  order  disposing  of  the 
motion  or  application. 

When,  therefore,  the  judge  refuses  to  certify  the 
bill  or  statement  on  the  theory  that  such  is  not  the 
rule,  and  that  the  bill  or  statement  has  not,  as  a  con- 
sequence, been  filed  and  served  within  the  time  pre- 
scribed by  statute,  he  will  be  compelled  to  do  so  by 
a  writ  of  mandate.172 

The  time  for  taking  an  appeal  begins  to  run  from 
the  date  of  the  entry  of  an  order  disposing  of  a  motion 
for  a  new  trial,  when  the  motion  is  seasonably  made. 
The  entry  of  the  judgment  becomes  final  on  that  date ; 
and,  therefore,  the  beginning  of  the  period  within 
which  the  proposed  bill  or  statement  must  be  filed 
and  served  will  be  postponed  until  such  motion  shall 
have  been  disposed  of;  that  is,  until  the  entry  of  the 
order  disposing  of  the  motion. 

When,  therefore,  the  judge  refuses  to  certify  the 
bill  or  statement  on  the  theory  that  such  is  not  the 
rule,  and  that  the  bill  or  statement  has  not,  as  a  con- 
sequence, been  filed  and  served  within  the  time  pre- 
scribed by  statute,  he  will  be  compelled  to  do  so  by 
a  writ  of  mandate.178 

The  time  for  the  filing  and  service  of  the  proposed  bill 
or  statement  cannot,  in  any  case,  be  extended  beyond 

172  State  ex  rel.  Hennessy  v.  Huston,  32  Wash.  154,  72 
Pac.  1015.  See,  also,  Hennessy  v.  Tacoma  Smelting  &  Re- 
fining Co.,  33  Wash.  423,  74  Pac.  584. 

178  State  ex  rel.  Payson  v.  Chapman,  35  Wash.  64,  76  Pac. 
525. 


233  CERTIFICATION   OF   BILL   OR   STATEMENT.  §  118 

the  period  of  ninety  days  after  the  time  begins  to  run 
within  which  an  appeal  may  be  taken  from  the  final 
judgment  in  the  cause,  or  (as  the  case  may  be)  from 
an  order  with  a  view  to  an  appeal  from  which  the  bill 
or  statement  is  proposed;  and  if  so  extended,  and  the 
proposed  bill  or  statement  is  not  filed  and  served 
within  the  time  so  limited  by  the  statute,  it  will  be 
stricken  from  the  cause  or  disregarded.174 

It  therefore  follows  that  the  lower  court  or  judge 
will  not  be  compelled  to  extend  the  time  beyond  the 
statutory  limit.175 

It  is  accordingly  held  that  where  an  appeal  is  taken 
from  two  or  more  appealable  orders,  and  the  time  for 
filing  and  serving  a  proposed  bill  or  statement  is  prop- 
erly extended,  the  statutory  provision  relating  to  the 
time  of  the  filing  and  service  of  the  bill  or  statement 
is  applied  to  the  date  of  the  entry  of  each  of  the  or- 
ders; and  if  the  proposed  bill  or  statement  is  not  filed 
in  time,  when  the  statutory  limit  is  applied  to  the  date 
of  the  entry  of  any  particular  order,  the  lower  court 
or  judge  will  not  be  compelled  to  certify  to  any  matters 
relating  to  such  order,  for  the  reason  that  the  proposed 
bill  or  statement  is  not  filed  in  time,  in  so  far  as  the 
particular  order  and  the  matters  relating  thereto  are 
concerned ;  and  would,  if  it  were  not  filed  in  time  with 
reference  to  other  orders,  be  stricken  from  the  cause  or 
disregarded. 

The  statutes  must  be  followed  with  respect  to  each 
order  appealed  from,  even  if  separate  bills  or  state- 
ments are  necessary  in  order  to  comply  with  the  stat- 

174  Loos  v.  Rondema,  10  Wash.  164,  38  Pac.  1012;  State 
v.  Seatoji,  26  Wash.  305,  66  Pac.  397;  Thomas  v.  Lincoln 
County,  32  Wash.  317,  73  Pac.  367 ;  Owen  v.  Casey,  48  Wash. 
673,  94  Pac.  473. 

176  State  v.  White,  40  Wash.  428,  82  Pac.  743. 


§  118      BILLS   OP  EXCEPTIONS   AND   STATEMENTS   OP  FACTS.      234 

utes.  A  bill  or  statement  cannot  cover  matters 
relating  to  an  appealable  order  when  the  time  for 
filing  and  serving  a  bill  or  statement  relating  to  such 
matters  and  such  order  has  expired.  The  statutes 
must  be  observed  and  followed,  whether  there  be  but 
one  proposed  bill  or  statement,  or  several  proposed 
bills  or  statements.176 

Under  former  statutes  a  visiting  judge  who  tried  a 
cause  was  not  required  to  return  to  the  county  where 
the  trial  was  held  in  order  to  settle  and  certify  a  bill 
of  exceptions  or  statement  of  facts,  but  might  perform 
such  duty  in  any  other  county;  and,  therefore,  man- 
damus would  not  lie  to  compel  him  to  return  for  that 
purpose.177 

This  is  no  longer  the  rule  with  reference  to  the  place 
of  the  hearing  of  the  application  for  the  settlement  and 
certification  of  the  bill  or  statement.178 

It  has  been  held  that  the  lower  court  or  judge  may 
be  compelled,  at  any  time  before  the  hearing  of  a  cause 
on  appeal,  to  certify  a  supplemental  bill  or  statement 
embodying  matters  omitted  from  the  original  bill  or 
statement  which  had  been  duly  certified  and  forwarded 
to  the  supreme  court,  even  though  amendments  had 
not  been  proposed  to  the  original  bill  or  statement.179 

This  decision  is  contrary  to  the  statutes  and  to  a 
former  holding  of  the  court,  and  most  likely  would  not 
be  followed  by  the  court  as  at  present  constituted.180 

176  State  ex  rel.  Dutch  Miller  Mining  &  Smelting  Co.  v. 
Superior  Court,  30  Wash.  43,  70  Pac.  102. 

177  See  State  ex  rel.  Malouf  v.  McDonald,  21  Wash.  201, 
57  Pac.  336. 

178  See  §  105,  supra,  and  cases  cited. 

179  See  State  ex  rel.  Klein  v.  Superior  Court,  36  Wash. 
44,  78  Pac.  137. 

180  See  In  re  Guardianship  of  Hill's  Heirs,  7  Wash.  421, 
35  Pac.  131.     See,  also,  §  116,  supra,  and  cases  cited. 


235  CERTIFICATION   OP   BILL   OR   STATEMENT.  §  119 

The  act  of  the  lower  court  or  judge  in  changing  a 
correct  certificate  into  an  incorrect  one  has  been  sus- 
tained.181 

And  the  following  case  was  cited  as  authority  for 
the  approval  of  the  act:  State  ex  rel.  Klein  v.  Superior 
Court,  36  Wash.  44,  78  Pac.  137.  But  while  this  was 
a  case  where  the  judge  was  compelled  to  certify  a 
supplemental  bill  or  statement,  it  does  not  appear  that 
he  was  compelled  to  make  a  wrong  certificate. 

The  court  has  not,  therefore,  thus  far  held  that  man- 
damus will  lie  for  the  purpose  of  compelling  the  lower 
court  or  judge  to  transform  a  correct  certificate  into 
an  incorrect  one.182 

It  is  a  well-established  rule  that  the  filing  of  the  bill 
or  statement  must  precede  the  service;  and  it  is  ac- 
cordingly held  that  mandamus  will  not  lie  to  compel 
the  certification  of  the  bill  or  statement  when  it  ap- 
pears that  the  service  preceded  the  filing.183 

§  119.  The  Remedy  of  Prohibition. — The  power  to 
compel  the  certification  of  the  bill  or  statement  in  a 
proper  case  necessarily  implies  the  power  to  prevent 
the  certification  in  an  improper  case.  While  man- 
damus is  expressly  provided  for,  prohibition  is  there- 
fore also  provided  for  by  necessary  implication.  The 
one  is  the  counterpart  of  the  other,  and  both  are  proper 
remedies. 

Thus,  it  is  the  rule  that  proposed  amendments  must 
be  filed  and  served  upon  the  party  proposing  the  bill 
or  statement  within  ten  days  after  the  service  of  the 

181  In  re  Holburte's  Estate,  38  Wash.  199,  80  Pac.  294. 

182  See  §  115,  supra,  and  cases  cited. 

183  State  ex  rel.  Palmer  Mountain  Tunnel  &  Power  Co.  v. 
Superior  Court,  63  Wash.  442,  115  Pac.  845. 


§  119     BILLS  OP  EXCEPTIONS  AND  STATEMENTS  OP  FACTS.      236 

bill  or  statement;  and  if  not  filed  and  served  within 
that  time,  the  proposed  bill  or  statement  will  be  deemed 
agreed  to,  and  the  correctness  of  its  contents  cannot 
thereafter  be  questioned.184 

The  lower  court  has  not,  therefore,  any  authority  to 
allow  the  bill  or  statement  to  be  withdrawn  for  the 
purpose  of  amendment  and  refiling  after  the  time  for 
proposing  amendments  has  expired,  even  though  the 
statutory  time  within  which  a  bill  or  statement  must 
be  filed  and  served  has  not  expired;  and  when  he 
threatens  to  do  so,  the  threatened  action  will  be  pre- 
vented by  a  writ  of  prohibition.188 

Where  a  party  waives  in  open  court  the  time  allowed 
by  the  statutes  for  the  proposal  of  amendments,  and 
agrees  that  a  bill  or  statement  as  proposed,  that  is,  as 
filed  and  served,  may  be  certified  without  further  de- 
lay, and  the  same  is  accordingly  certified  by  the  judge, 
he  will  not  thereafter  be  heard  to  say  that  the  contents 
of  the  bill  or  statement  are  not  correct,  and  will  not, 
therefore,  be  entitled  to  an  order  vacating  and  setting 
aside  the  certificate  to  the  bill  or  statement  upon  that 
ground;  and  if  the  lower  court  or  judge  threatens  to 
vacate  and  set  aside  the  certificate  for  that  reason,  he 
will  be  prevented  from  doing  so  by  a  writ  of  prohibi- 
tion.186 

Prohibition  is  also  the  proper  remedy  to  prevent  the 
lower  court  or  judge  from  hearing  the  application  for 
the  settlement  and  certification  of  the  bill  or  statement 
in  the  wrong  place.187 

184  See  §  71,  supra,  and  cases  cited. 

185  State  ex  rel.  Royal  v.  Linn,  35  Wash.  116,  76  Pac.  513. 
188  State  ex  rel.  Fetterley  v.  Griffin,  32  Wash.  67,  72  Pac. 

1030. 

187  See  State  ex  rel.  Clark  v.  Neal,  19  Wash.  642,  54  Pac. 
31. 


237  CERTIFICATION   OP   BILL   OR   STATEMENT.  §  119 

As  to  the  place  where  the  hearing  of  the  application 
for  the  settlement  and  certification  of  the  bill  or  state- 
ment may  be  held,  see  §§  104,  105,  supra,  and  cases 
cited. 

The  statutes  do  not  attempt  to  make  the  above  rem- 
edies exclusive,  and  there  are  therefore  instances 
where  certiorari  also  would  clearly  be  a  proper  rem- 
edy; for  an  appeal  from  a  ruling  of  the  lower  court  or 
judge  on  any  matter  relating  to  the  bill  or  statement  is 
inadequate,  and  certiorari  is  a  remedy  which  may  be 
invoked  in  aid  of  the  appellate  jurisdiction  of  the  su- 
preme court  as  well  as  mandamus  and  prohibition.18* 

Thus,  when  there  is  a  dispute  as  to  whether  the  fil- 
ing of  the  bill  or  statement  preceded  the  service,  the 
question  should,  no  doubt,  be  submitted  to  the  lower 
court  for  determination,  and  from  the  ruling  an  ag- 
grieved party  is  clearly  entitled  to  invoke  the  appel- 
late jurisdiction  of  the  supreme  court;  and  if  he  should, 
it  is  equally  clear  that  an  appeal  would  be  inadequate. 

In  an  early  case  this  subject  was  judicially  consid- 
ered, and  the  court  said:  "The  respondents  move  to 
strike  the  statement  of  facts  herein,  on  the  ground 
that  a  copy  of  the  same  was  served  upon  them  before 
the  original  was  filed  with  the  clerk  of  the  court,  and 
in  support  of  said  motion  one  of  the  attorneys  for  the 
respondents  makes  an  affidavit  in  this  court  to  the 
effect  that  on  the  24th  day  of  May,  1895,  at  his  office 
in  the  Hyde  block  in  the«city  of  Spokane,  there  was 
presented  to  him  by  the  appellant  the  original  state- 
ment of  facts,  with  the  request  that  he  admit  service 
of  the  same,  and  that  he  did  so  by  indorsing  such  ad- 
mission upon  such  original  statement,  and  that  at 
said  time  there  was  no  filing  mark  on  said  statement 

188  See  State  ex  rel.  Schwabacher  Brothers  &  Co.  v.  Su- 
perior Court,  61  Wash.  681,  112  Pac.  927. 


§  119      BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OP   FACTS.      238 

showing  that  the  same  had  been  filed  with  the  clerk 
of  the  court,  and  that  he  was  informed  and  believed 
that  the  same  had  not  been  filed,  but  it  does  not  appear 
from  whom  this  information  was  obtained. 

"It  seems  to  us  that  this  showing  is  insufficient.  In 
the  first  place,  if  we  were-  to  presume  that  the  state- 
ment had  not  been  filed  with  the  clerk  of  the  court 
when  served,  because  there  was  no  filing  mark  thereon 
at  the  time,  it  does  not  appear  but  that  the  same  might 
have  been  filed  practically  at  the  same  time  service 
was  admitted  by  the  respondents.  For  aught  we 
know,  the  clerk's  office  might  have  been  in  a  room 
adjoining  the  one  where  the  service  was  made,  and 
if  the  respondents  had  admitted  service  of  the  state- 
ment one  moment,  and  the  next  moment  the  same  had 
been  presented  to  the  clerk  of  the  court  for  filing,  so 
that  the  filing  was  contemporaneous  with  the  serving, 
that  certainly  would  have  been  sufficient. 

"But  aside  from  this,  we  do  not  think  that  a  question 
of  this  kind  should  be  presented  to  us  for  determina- 
tion upon  affidavits  filed  in  this  court.  If  the  re- 
spondents desired  to  attack  the  statement  upon  the 
ground  specified,  they  should  have  raised  the  objection 
in  the  lower  court  and  made  proof  of  the  facts  upon 
which  the  attack  was  based,  and  the  lower  court  might 
have  taken  proofs,  or  such  steps  as  it  should  have 
deemed  necessary,  to  determine  the  fact  as  to  whether 
the  statement  was  filed  at  or  prior  to  the  time  of  ser- 
vice. Possibly  an  appeal  to  this  court  would  lie  from 
the  decision  of  that  court  upon  the  question  of  fact,  but 
we  are  not  called  upon  to  determine  this  question  at  this 
time.  Motion  denied."  189 

189  State  ex  rel.  Abernethy  v.  Moss,  13  Wash.  42,  42  Pac. 
622,  43  Pac.  373. 


CERTIFICATION   OF   BILL   OR   STATEMENT.  §  120 

While  the  court  was  not  called  upon  to  decide 
whether  an  order  determining  the  matter  of  precedence 
in  the  filing  and  service  of  the  bill  or  statement  is  an 
order  from  which  an  appeal  would  lie,  and  therefore 
did  not  commit  itself  upon  the  proposition,  it  is  evi- 
dent that  such  an  order  is  one  which  affects  a  sub- 
stantial right,  and  is  for  that  reason  appealable,  and 
that  certiorari  would  be  a  proper  remedy  owing  to  the 
inadequacy  of  an  appeal. 

The  court  did  determine,  however,  that  matters  of 
this  kind  should  first  be  presented  to  the  lower  court 
for  determination ;  and  this  logically  leads  to  an  inquiry 
into  the  propriety  of  the  remedies  which  owe  their  ex- 
istence to  the  approval  of  the  court,  namely,  motions 
made  to  the  supreme  court  in  the  first  instance,  and 
based  upon  various  grounds,  to  strike  the  bill  or  state- 
ment from  the  cause. 

§  120.  Motions  Made  to  the  Supreme  Court  in  the 
First  Instance,  and  Based  upon  Various  Grounds,  to 
Strike  the  Bill  or  Statement  from  the  Cause. — The 
statute  provides  that  "the  certification  of  a  bill  of 
exceptions  or  statement  of  facts  provided  for  by  this 
chapter,  and  the  filing  and  service  of  the  proposed  bill 
or  statement,  the  notice  of  application  for  the  settle- 
ment thereof,  and  all  other  steps  and  proceedings  lead- 
ing up  to  the  making  of  the  certificate,  shall  be  deemed 
steps  and  proceedings  in  the  cause  itself,  resting  upon 
the  jurisdiction  originally  acquired  by  the  court  in  the 
cause,  and  no  irregularity  or  failure  to  pursue  the 
steps  prescribed  by  this  chapter  on  the  part  of  any 
party,  or  the  judge,  shall  affect  the  jurisdiction  of  the 
judge  to  settle  or  certify  a  proper  bill  of  exceptions 
or  statement  of  facts. ' '  19° 

190  Bern.  &  Bal.  Code,  §  393.     See  §  14,  supra. 


§  120      BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OP   FACTS.      240 

The  statute  also  provides  that  "upon  the  taking  of 
an  appeal  by  notice  as  provided  in  this  title,  and  the 
filing  of  a  bond  to  render  the  appeal  effectual,  the 
supreme  court  shall  acquire  jurisdiction  of  the  appeal 
for  all  necessary  purposes,  and  shall  have  control  of 
the  superior  court  and  of  all  inferior  officers  in  all  mat- 
ters pertaining  thereto,  and  may  enforce  such  control 
by  a  mandate  or  otherwise,  and,  if  necessary,  by  fine 
and  imprisonment,  which  imprisonment  may  be  contin- 
ued until  obedience  shall  be  rendered  to  the  mandate 
of  the  supreme  court.  But  the  superior  court  shall, 
nevertheless,  retain  jurisdiction  for  the  purpose  of  all 
proceedings  by  this  act  provided  to  be  had  in  such  court, 
and  for  the  purpose  of  settlement  and  certifying  the 
bills  of  exceptions  and  statements  of  facts,  and  for  all 
purposes  in  so  far  as  the  cause  is  not  affected  by  the  ap- 
peal."191 

The  statutes  thus  expressly  declare  that  all  steps 
and  proceedings  relating  to  the  bill  or  statement,  from 
the  filing  and  service  to  the  certification,  are  steps  and 
proceedings  in  the  cause  itself,  resting  upon  the  juris- 
diction originally  acquired  by  the  court  in  the  cause. 

It  thus  appears  that  the  jurisdiction  of  the  lower 
court  or  judge  over  the  bill  or  statement  does  not  de- 
pend upon  a  compliance  with  any  of  the  rules  pre- 
scribed for  the  preparation,  proposal,  settlement  or 
certification  of  the  bill  or  statement;  but  depends  and 
rests  solely  upon  the  jurisdiction  originally  acquired 
by  the  court  in  the  cause. 

The  steps  and  proceedings  relating  to  the  bill  or 
statement  are  as  much  parts  of  the  cause  itself  as  any 
other  steps  in  the  cause,  from  the  service  of  the  com- 
plaint and  summons  to  the  entry  of  the  final  judgment, 
or  any  order  thereafter  entered. 

181  Rem.  &  Bal.  Code,  §  1731.     See  §  23,  supra. 


241  CERTIFICATION   OF   BILL   OR   STATEMENT.  §  120 

If  the  steps  and  proceedings  are  not  taken  in  the 
manner  prescribed  by  statute,  the  certification  of  the 
bill  or  statement  is  merely  an  erroneous  exercise  of  the 
jurisdiction  which  was  acquired  when  the  court  origi- 
nally acquired  jurisdiction  of  the  cause  itself. 

An  erroneous  exercise  of  jurisdiction  once  acquired 
is  the  law  of  the  case  unless  reversed  by  a  superior 
tribunal  whose  jurisdiction  has  been  properly  invoked. 

All  rulings  relating  to  the  preparation,  proposal, 
settlement  or  certification  of  the  bill  or  statement,  are 
rulings  concerning  which  the  appellate  jurisdiction  of 
the  supreme  court  may  be  invoked,  for  they  clearly 
affect  a  substantial  right;  but  inasmuch  as  an  appeal 
is  inadequate,  the  statute  provides  that  the  appellate 
jurisdiction  may  be  invoked  by  mandamus  and  pro- 
hibition.192 

But  it  is  a  fundamental  rule  of  appellate  practice 
and  procedure  that  it  must  appear  from  the  record 
that  all  matters  relating  to  alleged  errors  were  pre- 
sented to  and  acted  upon  by  the  lower  court  or  judge. 

It  therefore  follows  that  all  questions  relating  to  the 
preparation,  proposal,  settlement  or  certification  of  the 
bill  or  statement  should  first  be  presented  to  the  lower 
court  or  judge  for  determination;  and  that  if  they  are 
presented  to  the  supreme  court  at  all,  they  should  be 
presented  by  invoking  its  appellate  jurisdiction  from 
the  ruling  or  rulings  complained  of  by  an  application 
for  a  writ  of  mandate,  or  prohibition,  or  certiorari,  no 
doubt,  according  to  the  writ  which  appears  to  be  the 
most  appropriate  to  the  particular  case. 

Motions  made  to  the  supreme  court  in  the  first  in- 
stance, and  based  upon  various  grounds,  to  strike  the 
bill  or  statement  from  the  cause,  are,  therefore,  not 

192  See  §§  118,  119,  supra,  and  cases  cited. 
10 


§  120      BILLS   OF   EXCEPTIONS   AND   STATEMENTS   OF   FACTS.      242 

warranted,  when  the  certificate  is  in  the  form  pre- 
scribed by  statute,  and  is  duly  signed  by  a  judge  of 
the  superior  court  of  the  state  of  Washington. 

In  making  these  steps  a  part  of  the  cause  itself  the 
statutes  contemplate  that  a  bill  or  statement  so  certi- 
fied shall  be  of  absolute  verity  and  conclusiveness  when 
attacked  in  the  supreme  court  in  the  first  instance.  Of 
this  there  can  be  no  serious  doubt  long  entertained. 
The  intention  clearly  is  that  a  bill  or  statement  so  cer- 
tified shall  have  the  same  force  and  effect  as  any  other 
appealable  order  which  has  not  been  appealed  from  in 
the  manner  prescribed  by  statute;  that  is,  that  a  supe- 
rior court  shall  be  a  court  of  last  resort  upon  all  ques- 
tions decided  by  it,  where  its  jurisdiction  to  make  the 
decision,  however  erroneous,  is  complete,  and  there  has 
been  no  appeal. 

In  the  preceding  section  it  was  shown  that  the  court 
has  held  that  where  there  is  a  dispute  in  regard  to 
the  precedence  in  the  filing  and  service  of  the  bill  or 
statement,  all  matters  relating  thereto  should  first  be 
presented  to  the  lower  court  or  judge  for  determina- 
tion where  they  cannot  be  determined  from  an  inspec- 
tion of  the  record;  and  refused  to  entertain  a  motion 
to  strike  the  bill  or  statement  upon  the  ground  that 
it  was  served  before  it  was  filed.  The  correctness  of 
the  principle  here  maintained  was  thus  early  recog- 
nized by  the  court.193 

The  correctness  of  this  principle  is  also  recognized 
by  later  cases  which  approve  the  practice  of  first  sub- 
mitting to  the  lower  court  or  judge  for  determination 
the  question  whether  the  bill  or  statement  as  proposed 
is  a  substantial  bill  or  statement  (that  is,  whether  the 
bill  or  statement  as  proposed  is  in  substance  such  a 

193  State  ex  rel.  Abernethy  v.  Moss,  13  Wash.  42,  42  Pac. 
622,  43  Pac.  373. 


243  CERTIFICATION   OF   BILL   OR   STATEMENT.  §  120 

bill  or  statement  as  the  statute  contemplates  should 
be  proposed  in  the  first  instance),  and  which  recognize 
the  right  of  the  lower  court  or  judge  to  strike  the  bill 
or  statement  from  the  cause  when  it  is  apparent  that 
bad  faith,  or  such  gross  carelessness  as  amounts  to 
bad  faith,  has  been  exercised  in  the  preparation  of  the 
bill  or  statement,  or  when  the  order  or  orders  of  the 
lower  court  or  judge  requiring  the  bill  or  statement 
to  be  made  substantial  have  not  been  complied  with.194 

See,  further,  the  following  late  case  where  the  prac- 
tice of  moving  the  lower  court  to  strike  the  bill  or 
statement  upon  the  ground  that  it  was  not  filed  before 
it  was  served  was  recognized  as  the  proper  practice, 
and  where  the  appellate  jurisdiction  of  the  supreme 
court  was  invoked  from  the  ruling  by  an  application 
for  a  writ  of  mandate,  an  appeal  being  inadequate.195 

When  this  work  was  finished  the  author  had  no 
authority  for  the  principle  herein  contended  for,  or 
rather  the  volume  containing  this  late  case  had  not 
been  published,  and  he  was  not  familiar  with  it;  and 
it  is  gratifying  to  be  able  at  the  last  moment  to  insert 
in  the  work  a  case  which  so  admirably  illustrates  his 
contention. 

If  it  should  be  insisted  that  a  motion  made  to  the 
supreme  court  in  the  first  instance  to  strike  the  bill 
or  statement  from  the  cause  upon  the  ground,  for 
example,  that  it  was  not  filed  and  served  within  the 

194  State  ex  rel.  Fowler  v.  Steiner,  51  Wash.  239,  98  Pac. 
609;  State  ex  rel.  Roberts  v.  Clifford,  55  Wash.  440,   104 
Pac.    631.     See,    also,   the  following   case   where   the   court 
refused  to  strike  the  bill  or  statement  upon  the  ground  that 
it  was  sham  and  false:  Jefferson  County  v.   Trumbull,  31 
Wash.  217,  71  Pac.  787. 

195  State  ex  rel.  Palmer  Mountain  Tunnel  &  Power  Co.  v. 
Superior  Court,  63  Wash.  442,  115  Pac.  845. 


§  120      BILLS  OF   EXCEPTIONS   AND   STATEMENTS   OP   FACTS.      244 

time  prescribed  by  statute,  is  proper  because  it  pre- 
sents a  jurisdictional  question,  the  answer  is  that  it 
does  not  present  a  juris dictional  question;  for  the  stat- 
ute expressly  provides  that  the  filing  and  service  are 
merely  steps  in  the  cause  itself,  resting  upon  the  juris- 
diction originally  acquired  by  the  court  in  the  cause. 
The  certifying  of  the  bill  or  statement  by  the  lower 
court  or  judge  under  such  circumstances  would  clearly 
be  an  erroneous  exercise  of  jurisdiction  already  exist- 
ing; but  the  erroneous  exercise  of  jurisdiction  already 
existing  is  one  thing,  and  the  want  of  jurisdiction  is 
quite  another. 

If  the  bill  or  statement  has  not  been  filed  and  served 
within  the  time  prescribed  by  statute,  it  is  merely  sub- 
ject to  the  application  by  the  court  or  judge  of  the 
statute  of  limitations  in  that  particular  case  pre- 
scribed; and  whether  the  statutory  limitation  is  ap- 
plied or  not,  the  action  of  the  court  or  judge  is 
intended  to  be  final  unless  the  appellate  jurisdiction 
of  the  supreme  court  be  invoked  therefrom  either  by 
mandamus  or  prohibition,  an  appeal  being  inadequate. 

Would  the  supreme  court  strike  a  complaint  from 
the  record  in  response  to  a  motion  made  to  it  in  the 
first  instance  simply  because  it  appeared  from  the  rec- 
ord that  the  action  was  barred  by  the  statutes  of  lim- 
itation before  it  was  commenced  I  Or  would  the  court 
strike  an  answer  from  the  record  in  response  to  a  mo- 
tion made  to  it  in  the  first  instance  simply  because  it 
appeared  from  the  record  that  the  time  for  answering 
had  expired?  Certainly  not.  The  determination  of 
such  matters  by  the  lower  court  is  final,  unless  the 
appellate  jurisdiction  of  the  supreme  court  is  properly 
invoked  from  the  ruling. 

The  filing  of  the  bill  or  statement  is,  by  the  express 
provisions  of  the  statute,  as  much  a  step  or  proceeding 


245  CERTIFICATION   OF   BILL   OR   STATEMENT.  §  120 

in  the  cause  as  is  the  filing  of  a  complaint;  and  there- 
fore the  conclusion  that  a  motion  made  to  the  supreme 
court  in  the  first  instance  to  strike  a  bill  or  statement 
from  the  record  upon  the  ground  that  it  was  not  filed 
and  served  within  the  time  prescribed  by  statute  is  an 
unwarranted  practice  cannot  logically  be  resisted. 

The  timely  filing  and  service  of  the  bill  or  statement 
is  judicially  determined  by  the  certification  which  is 
an  appealable  ruling  in  the  cause  itself,  and  final  and 
conclusive  unless  reversed  by  the  supreme  court  after 
its  appellate  jurisdiction  has  been  properly  invoked, 
regardless  of  any  filing  marks  or  dates  which  might 
appear  upon  the  face  of  the  record. 

Again,  if  it  be  insisted  that  a  motion  made  to  the 
supreme  court  in  the  first  instance  to  strike  the  bill  or 
statement  from  the  cause  upon  the  ground,  for  example, 
that  the  service  preceded  the  filing,  is  proper  because 
it  presents  a  jurisdictional  question,  the  answer  again 
is  that  it  does  not  present  a  jurisdictional  question,  for 
the  statute  expressly  provides  that  the  filing  and  ser- 
vice are  merely  steps  and  proceedings  in  the  cause  it- 
self, resting  upon  the  jurisdiction  originally  acquired 
by  the  court  in  the  cause. 18* 

The  certifying  of  the  bill  or  statement  by  the  lower 
court  or  judge  under  such  circumstances  would  clearly 
be  an  erroneous  exercise  of  jurisdiction  already  exist- 
ing; but,  as  was  before  observed,  the  erroneous  exer- 
cise of  jurisdiction  already  existing  is  one  thing,  and 
the  want  of  jurisdiction  is  quite  another. 

If  the  service  precedes  the  filing,  the  bill  or  state- 
ment may,  no  doubt,  upon  motion  made  to  the  lower 
court  or  judge,  be  stricken  from  the  cause  upon  that 
ground ;  and  from  this  ruling  the  appellate  jurisdiction 
of  the  supreme  court  may  then  be  properly  invoked  by 

"«  Rem.  &  Bal.  Code,  §  393.     See  §  14,  supra. 


§  120      BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OP   FACTS.      246 

mandamus,  or  prohibition,  or  by  certiorari  also,  no 
doubt,  according  to  the  remedy  which  may  appear  to 
be  the  most  appropriate;  and  what  is  said  here  applies 
to  the  preceding  instance. 

The  regularity  of  the  filing  and  service  is  judicially 
determined  by  the  certification  which  is  an  appealable 
ruling  in  the  cause  itself,  and  final  and  conclusive 
unless  reversed  by  the  supreme  court  after  its  appel- 
late jurisdiction  has  been  properly  invoked,  regardless 
of  any  filing  marks  or  dates  which  might  appear  upon 
the  face  of  the  record. 

If  the  bill  or  statement  be  finally  stricken  from  the 
cause  upon  this  ground,  it  may,  no  doubt,  be  regularly 
filed  and  served  if  the  time  for  the  filing  and  service 
has  not  yet  expired,  for  it  is  clearly  an  irregularity, 
and  the  statute  expressly  provides  that  "no  irregu- 
larity or  failure  to  pursue  the  steps  prescribed  by  this 
chapter  on  the  part  of  any  party,  or  the  judge,  shall 
affect  the  jurisdiction  of  the  judge  to  settle  or  certify 
a  proper  bill  of  exceptions  or  statement  of  facts. ' ' 18T 

If  a  bill  or  statement  may  be  filed  and  served  after 
having  been  involuntarily  stricken  from  the  cause, 
when  the  time  for  the  filing  and  service  has  not  expired, 
may  it  not  be  voluntarily  withdrawn,  and  filed  and 
served  anew,  at  any  time  before  the  expiration  of  the 
period  prescribed  by  the  statute  for  the  filing  and  ser- 
vice of  the  bill  or  statement?  And  is  not  the  correct- 
ness of  the  ruling  of  the  following  case,  therefore, 
fairly  debatable,  since  it  holds  that  the  lower  court  or 
judge  has  not  the  authority  to  allow  the  bill  or  state- 
ment to  be  withdrawn  for  the  purpose  of  amendment 
and  refiling  after  the  time  for  proposing  amendments 
has  expired,  even  though  the  time  within  which  the 

197  Rem.  &  Bal.  Code,  §  393.     See  §  14,  supra. 


247  CERTIFICATION   OF   BILL   OR   STATEMENT.  §  120 

bill  or  statement  must  be  filed  and  served  has  not 
expired  ? 198 

To  continue  to  illustrate  the  principle  here  main- 
tained by  the  selection  of  additional  examples  would 
necessitate  a  repetition  of  substantially  the  same  rea- 
sons, and  this  is  neither  necessary  nor  desirable. 
What  has  been  said  while  illustrating  the  principle 
by  means  of  the  prominent  examples  selected  will  ap- 
ply to  any  other  instance  which  might  be  named.  All 
the  steps  and  proceedings  relating  to  the  preparation, 
proposal,  settlement  and  certification  of  the  bill  or 
statement  are  steps  and  proceedings  in  the  cause  it- 
self, resting  upon  the  jurisdiction  originally  acquired 
by  the  court  in  the  cause;  and  therefore  all  rulings 
relating  thereto  are  as  final  and  conclusive,  until  re- 
versed on  appeal,  as  is  the  final  judgment  in  the  cause. 

This  principle  will  not,  of  course,  apply  to  motions 
to  dismiss  the  appeal  upon  the  ground  that  the  notice 
of  appeal  was  not  given  within  the  time  prescribed  by 
statute,  or  upon  the  ground  that  the  bond  on  appeal 
was  not  filed  within  the  time  prescribed,  or  upon  the 
ground  that  the  controversy  has  ceased,  or  upon  the 
ground  that  the  cause  is  not  within  the  appellate  juris- 
diction of  the  supreme  court,  or  upon  the  ground  that 
the  bond  on  appeal  is  not  sufficient  in  form  and  sub- 
stance, or  upon  the  various  other  grounds  permitted 
by  the  statute.199 

These  are  all  matters  which  either  involve  the  appel- 
late jurisdiction  of  the  supreme  court,  or  involve  its 
right  to  exercise  such  appellate  jurisdiction,  and  are 
not  in  any  sense  matters  and  proceedings  in  the  cause 

198  State  ex  rel.  Royal  v.  Linn,  35  Wash.  116,  76  Pac.  513. 
See  §  71,  supra. 

199  See  Kern.  &  Bal.  Code,  §  1733.     See  §  25,  supra. 


§  120      BILLS   OP  EXCEPTIONS   AND   STATEMENTS   OF   FACTS.      248 

itself  resting  upon  the  jurisdiction  orginally  acquired 
by  the  court  in  the  cause. 

But  the  certification  of  a  bill  or  statement  is  a  judicial 
determination  upon  which  a  party  has  the  right  to  rely 
until  the  ruling  shall  have  been  reversed  on  appeal, 
and  should  not  be  any  more  subject  to  a  sudden  and 
unexpected  attack  than  is  the  final  judgment  in  the 
cause;  and  the  same  should  be  true  as  to  any  other 
ruling  which  relates  to  the  bill  or  statement. 

Of  course,  if  the  bill  or  statement  is  not  duly  certified, 
it  may  be  stricken  from  the  record  upon  motion  made 
to  the  supreme  court  in  the  first  instance ;  for,  unless  a 
bill  or  statement  has  been  duly  certified,  it  does  not  be- 
come a  part  of  the  record,  and,  in  fact,  is  nothing  in 
contemplation  of  law,  and  therefore  has  not  a  legiti- 
mate place  anywhere. 

The  author  therefore  concludes  that  motions  made 
to  the  supreme  court  in  the  first  instance,  and  based 
upon  various  grounds,  to  strike  the  bill  or  statement 
from  the  cause,  are  not  warranted  when  the  bill  or 
statement  has  been  duly  certified. 


249        LEGAL  EFFECT  OF  BILL  OB  STATEMENT.       §  121 


CHAPTER  IX. 
THE  LEGAL  EFFECT  OF  THE  BILL  OR  STATEMENT. 

§  121.     Definitions — Divisions  of  the  Subject. 

§  122.  The  Bill  or  Statement  When  Duly  Certified  Becomes 
an  Inseparable  Part  of  the  Record. 

§  123.  The  Bill  or  Statement  When  Duly  Certified  Becomes 
an  Absolute  Verity. 

§  124.  Those  Rules  Which  Spring  into  Existence  When  the 
Bill  or  Statement  Becomes  a  Part  of  the  Record, 
the  Nonobservance  of  Which  will  Enlarge  the 
Time  Prescribed  by  Statute  for  the  Service  and 
Filing  of  the  Briefs  on  Appeal. 

§  121.  Definitions — Divisions  of  the  Subject. — The 
statutory  provision  which  must  govern  an  inquiry  into 
the  legal  effect  of  the  bill  or  statement  reads  as  follows : 

"The  judge  shall  certify  that  the  matters  and  pro- 
ceedings embodied  in  the  bill  or  statement,  as  the  case 
may  be,  are  matters  and  proceedings  occurring  in  the 
cause  and  that  the  same  are  thereby  made  a  part  of 
the  record  therein ;  and,  when  such  is  the  fact,  he  shall 
further  certify  that  the  same  contains  all  the  material 
facts,  matters  and  proceedings  heretofore  occurring  in 
the  cause  and  not  already  a  part  of  the  record  therein, 
or  (as  the  case  may  be)  such  thereof  as  the  parties 
have  agreed  to  be  all  that  are  material  therein.  The 
certificate  shall  be  signed  by  the  judge,  but  need  not 
be  sealed;  and  thereupon  all  the  matters  and  proceed- 
ings embodied  in  the  bill  of  exceptions  or  statement 
of  facts,  as  the  case  may  be,  shall  become  and  thence- 
forth remain  a  part  of  the  record  in  the  cause,  for  all 
the  purposes  thereof  and  of  any  appeal  therein.'"- 

1  Rem.  &  Bal.  Code,  §  391.     See  §  12,  supra. 


§  122      BILLS   OF  EXCEPTIONS   AND   STATEMENTS   OF   FACTS.      250 

.    « 

It  is  self-evident  that  a  duly  certified  bill  or  state- 
ment cannot  "become  and  thenceforth  remain  a  part 
of  the  record  in  the  cause"  if  it  may  be  stricken  from 
the  record;  and  it  therefore  follows  that  the  bill  or 
statement  when  duly  certified  becomes  an  inseparable 
part  of  the  record. 

It  is  also  self-evident  that  a  duly  certified  bill  or 
statement  cannot  "become  and  thenceforth  remain  a 
part  of  the  record  in  the  cause  for  all  the  purposes 
thereof  and  of  any  appeal  therein"  if  its  correctness 
or  truthfulness  may  be  questioned;  and  it  therefore 
also  follows  that  the  bill  or  statement  when  duly  cer- 
tified becomes  an  absolute  verity. 

An  effect  is  a  result  produced.  A  legal  effect  is  a 
result  which  the  law  creates  or  produces.  The  legal 
effect  of  a  duly  certified  bill  or  statement  may  therefore 
be  defined  to  be  a  result  whereby  the  contents  of  the 
bill  or  statement  become,  in  contemplation  of  laiv,  an 
inseparable  part  of  the  record,  and  an  absolute  verity. 

The  subject  will  be  considered  in  a  threefold  view, 
namely,  first,  with  reference  to  the  statutory  rule  that 
the  bill  or  statement  when  duly  certified  becomes  an 
inseparable  part  of  the  record;  secondly,  with  refer- 
ence to  the  statutory  rule  that  the  bill  or  statement 
when  duly  certified  becomes  an  absolute  verity;  and 
thirdly,  with  reference  to  those  rules  which  spring  into 
existence  when  the  bill  or  statement  becomes  a  part 
of  the  record,  the  nonobservance  of  which  will  enlarge 
the  time  prescribed  by  statute  for  the  service  and  filing 
of  the  briefs  on  appeal. 

And  first,  with  reference  to  the  statutory  rule  that 

§  122.  The  Bill  or  Statement,  When  Duly  Certified, 
Becomes  an  Inseparable  Part  of  the  Record. — The  stat- 
utory rule  that  the  bill  or  statement  becomes,  when 


251         LEGAL  EFFECT  OF  BILL  OR  STATEMENT.       §  122 

duly  certified,  an  inseparable  part  of  the  record,  has 
not  been  very  carefully  observed  and  followed;  but 
this  may  be  easily  explained. 

The  nonobservance  of  certain  rules  which  are  pecu- 
liar to  other  subjects  of  appellate  practice  and  proce- 
dure may  ofttimes  directly^  affect  the  bill  or  statement 
and  render  it  of  no  avail,  even  though  it  is  an  insepara- 
ble part  of  the  record  and  an  absolute  verity.  In  other 
words,  the  legal  effect  of  such  nonobservance'  is  to 
render  the  bill  or  statement  of  no  avail,  notwithstanding 
the  fact  that  it  is  an  inseparable  part  of  the  record  and 
an  absolute  verity.  In  such  cases  the  bill  or  statement 
should  simply  be  disregarded,  and  not  stricken.  But 
the  difference  between  a  disregarding  and  a  striking 
from  the  cause  is  theoretical  only;  that  is,  the  final 
determination  of  the  cause  will  be  the  same  whether 
the  bill  or  statement  be  disregarded  or  stricken  from 
the  cause;  and  therefore  the  rule  has  not  been  very 
carefully  followed. 

Thus,  it  is  held  that  when  the  alleged  errors  relate 
to  the  evidence,  and  exceptions  have  not  been  taken 
to  the  findings  and  conclusions  of  the  lower  court,  the 
bill  or  statement  will  be  stricken  from  the  cause.2 

Thus  again,  it  is  held  that  when  the  exceptions  to  the 
findings  are  general,  the  bill  or  statement  will  be 
stricken  from  the  cause  unless  it  appears  that  each 
and  all  of  the  findings  are  erroneous.8 

2  Stoddard  v.  Seattle  National  Bank,  12  Wash.  658,  40 
Pac.  730;  Montesano  v.  Blair,  12  Wash.  188,  40  Pac.  731; 
Hoeschler  v.  Bascom,  44  Wash.  673,  87  Pac.  943;  Crowe  & 
Co.  v.  Brandt,  50  Wash.  499,  97  Pac.  503. 

8  Peters  v.  Lewis,  33  Wash.  617,  74  Pac.  815;  Horrell  v. 
California  etc.  Homebuilders'  Assn.,  40  Wash.  531,  82  Pac. 
889. 


§  122      BILLS   OP   EXCEPTIONS   AND   STATEMENTS   OF   FACTS.      252 

It  is  also  held  that  when  exceptions  to  the  refusal  to 
make  findings  are  general,  the  bill  or  statement  will  be 
stricken  from  the  cause.4 

But  while  a  general  exception  to  all  the  findings  of 
fact  is  insufficient  unless  it  appears  that  each  and  all 
are  erroneous,  the  rule  that  the  bill  or  statement  will 
be  stricken  does  not  apply,  it  is  held,  where  error  is 
assigned  on  the  action  of  the  trial  court  in  excluding 
evidence  that  might  have  changed  the  character  of 
the  findings.5 

A  respondent  may  propose  and  have  a  bill  or  state- 
ment certified,  though  not  necessary  to  an  appellant's 
case;  but  if  respondent  has  not  appealed,  and  the  ap- 
pellant has  not  excepted  to  the  findings  of  fact,  it  is 
held  that  since  the  bill  or  statement  serves  no  useful 
purpose  in  such  a  case,  it  will  be  stricken  from  the 
cause  in  so  far  as  it  concerns  the  particular  appeal. 
Would  it  not  have  been  more  correct  to  have  simply 
held  that  the  bill  or  statement  would  be  disregarded  in 
such  a  easel 8 

It  is  held  that  a  bill  or  statement  will  not  be  stricken 
when  exceptions  to  the  findings  of  fact  are  filed  within 
five  days  after  notice  of  the  signing,  when  signed  in 
the  absence  of  the  appellant,  thereby  implying  that  the 
bill  or  statement  would  be  stricken  where  exceptions 

4  Pederson  v.  Ullrich,  50  Wash.  211,  96  Pac.  1044 ;  Crowe 
&  Co.  v.  Brandt,  50  Wash.  499,  97  Pae.  503. 

5  Lilly  v.  Ekliind,  37  Wash.  532,  79  Pac.  1107 ;  Bringgold 
v.  Bringgold,  40  Wash.  121,  82  Pac.  179 ;  Schlotf eldt  v.  Bull, 
17  Wash.  6,  48  Pac.  343 ;  Smith  v.  Glenn,  40  Wash.  262,  82 
Pac.  605;  Warehime  v.  Schweitzer,  51  Wash.  299,  98  Pae. 
747. 

•  See  Lauridsen  v.  Lewis,  47  Wash.  594,  92  Pac.  440. 


253        LEGAL  EFFECT  OF  BILL  OR  STATEMENT.       §  122 

are  not  taken  within  five  days  after  the  filing  of  the 
findings,  when  signed  in  the  presence  of  the  appellant. 7 

The  statutory  rule  has,  however,  long  been  recog- 
nized by  the  court,  as  is  manifest  from  the  following 
excerpt: 

"Respondents  move  this  court  to  strike  the  state- 
ment of  facts  from  the  record  on  the  grounds  and  for 
the  reasons  that  appellants  have  not  made  or  taken 
any  proper  or  legal  exceptions  to  any  order,  rule  or 
judgment  of  the  lower  court,  and  have  not  made  or 
taken  any  exception  to  any  finding  of  fact  or  conclu- 
sion of  law,  in  the  manner  provided  by  law,  nor  within 
the  time  required  by  statute.  It  has  been  the  practice 
of  this  court  to  strike  the  statement  of  facts  from  the 
record  only  in  cases  where  the  same  is  not  properly 
certified,  or  where  it  has  been  settled  and  certified  with- 
out notice  to  all  parties  who  are  entitled  to  notice,  under 
the  provisions  of  the  statute.  As  it  is  not  shown,  or 
claimed,  that  the  statement  in  this  case  is  not  properly 
certified,  or  that  the  necessary  notices  were  not  given 
prior  to  its  certification,  it  follows  that  the  grounds 
stated  are  not  sufficient  to  authorize  us  to  strike  out  the 
statement  of  facts." 8 

A  flagrant  violation  of  the  rules  of  the  supreme  court 
relating  to  the  bill  or  statement  will  also,  no  doubt, 
render  the  bill  or  statement  of  no  avail;  in  which  event 
it  should  be  disregarded  rather  than  stricken,  for  the 
statutes  are  of  greater  authority  than  the  rules. 

Although  the  bill  or  statement  becomes  an  insep- 
arable part  of  the  record  when  duly  certified,  it  does 
not  in  any  sense  become  a  part  of  the  transcript  which 

7  See  Mann  v.  Provident  Life  &  Trust  Co.,  42  Wash.  581, 
85  Pac.  56. 

8  Hannegan  v.  Roth,  12  Wash.  65,  40  Pac.  636. 


§  122      BILLS  OF   EXCEPTIONS   AND   STATEMENTS   OF   FACTS.      254 

is  merely  a  copy  of  the  records  certified  by  the  clerk. 
It  may  therefore  be  filed  separately;  and  the  indorse- 
ment of  the  clerk  of  the  date  of  the  filing  is  sufficient 
proof  of  the  date  of  the  filing  when  the  signature  of 
the  clerk  is  not  disputed." 

Under  former  statutes  it  was  also  the  rule  that  the 
bill  or  statement  need  not  be  attached  to  the  tran- 
script.10 

Indeed,  it  was  the  rule  under  former  statutes  that 
the  bill  or  statement  should  be  separate.  But  it  was 
held  that  the  fact  that  they  were  mingled  together 
would  not  be  ground  for  striking  any  portion  when 
the  whole  is  certified  by  the  judge  and  clerk,  both  as 
a  statement  and  transcript.11 

Under  former  statutes  a  copy  of  the  bill  or  state- 
ment should  be  sent  up  instead  of  the  original;  but  it 
was  held  that  an  appeal  would  not  be  dismissed  be- 
cause the  original  was  sent  up  instead  of  a  transcript 
thereof.12  Or  because  the  copy  bore  the  actual  signa- 
ture of  the  judge.18 

The  bill  or  statement  is  usually  forwarded  to  the 
supreme  court  along  with  the  transcript;  but  it  is  a 
sufficient  compliance  with  the  statutes  if  the  bill  or 
statement  is  sent  up  at  any  time  before  the  hearing  of 
the  cause  on  appeal. 

Thus,  it  was  held  under  former  statutes  that  the 
omission  of  the  clerk  to  send  up  the  statement  of  facts 

9  Johnston  v.  Gerry,  34  Wash.  524,  76  Pac.  258,  77  Pac. 
503. 

10  Haas  v.  Gaddis,  1  Wash.  89,  23  Pac.  1010. 

11  See    Dittenhoefer   v.    Coeur   d'Alene    Clothing    Co.,    4 
Wash.  519,  30  Pac.  660. 

12  Wilson  v.  Morrell,  5  Wash.  654,  32  Pac.  733. 

18  Dittenhoefer  v.  Coeur  d'Alene  Clothing  Co.,  4  Wash. 
519,  30  Pac.  660. 


255         LEGAL  EFFECT  OF  BILL  OR  STATEMENT.       §  123 

with  the  transcript  of  the  record  is  not  ground  for  dis- 
missal of  the  appeal,  where  the  mistake  is  corrected 
as  soon  as  discovered.1* 

A  supplemental  transcript  may  be  filed  at  any  time 
before  the  hearing  of  the  cause  on  appeal.15 

§  123.  The  Bill  or  Statement,  When  Duly  Certified, 
Becomes  an  Absolute  Verity. — The  statutory  rule  that 
the  bill  or  statement,  when  duly  certified,  becomes  an 
absolute  verity  has  had,  like  Aeneas,  various  fortunes ; 
but  it  now  appears  to  be  well  established.  A  short 
review  of  the  cases,  however,  will  no  doubt  be  of  profit. 

The  court  recognized  the  statutory  rule  in  an  early 
case  by  the  use  of  the  following  language: 

"In  our  opinion,  it  would  not  be  proper  practice  to 
entertain  a  motion,  in  this  court,  to  modify  a  certified 
statement  of  facts  either  by  inserting  new  matter 
therein,  or  by  disregarding  or  striking  out  any  portion 
thereof.  What  the  facts  are,  in  any  particular  case, 
so  far  as  this  court  is  concerned,  must  be  ascertained 
from  the  certificate  of  the  trial  court,  and  the  truthful- 
ness of  a  statement  properly  certified  to  this  court 
cannot,  for  obvious  reasons,  be  here  questioned  on 
appeal. ' ' 16 

In  a  later  case  it  was  held  that  a  bill  or  statement 
which  is  duly  certified  cannot  be  contradicted  by  the 

14  Pox  v.  Utter,  6  Wash.  299,  33  Pac.  354. 

15  Johnston  v.  Gerry,  34  Wash.  524,  76  Pac.  258,  77  Pac. 
503.     With  reference  to  the  statutory  provisions  relating  to 
the  time  when  the  record  on  appeal  should  be  forwarded  to 
the  supreme  court,  and  providing  for  the  dismissal  of  an 
appeal  upon  the  ground  that  the  record  on  appeal  has  not 
been  sent  up,   or  that  the  appeal  has  not  been,  diligently 
prosecuted,  see  Rem.  &  Bal.  Code,  §§  1729,  1733,  1734.     See 
§§21,  25,  26,  supra. 

"  Warburton  v.  Ralph,  9  Wash.  537,  38  Pac.  140. 


§  123      BILLS  OP   EXCEPTIONS   AND   STATEMENTS   OF   FACTS.      256 

minutes  of  the  clerk  of  the  superior  court,  nor  by  affi- 
davits filed  in  the  supreme  court.17 

In  a  still  later  case  it  was  held  that  a  certificate  of 
the  judge  which  recites  that  the  bill  or  statement 
''contains  all  the  material  facts,  matters,  and  proceed- 
ings heretofore  occurring  in  the  cause,  and  not  already 
a  part  of  the  record,  and  such  thereof  as  the  parties 
have  agreed  to  be  all  that  are  material,"  is  conclusive 
as  to  the  verity  of  the  bill  or  statement.18 

In  the  following  case,  however,  it  was  held  that  a 
duly  certified  statement  of  facts  is  not  sufficient  on 
appeal  when  it  refers  to  certain  exhibits  offered  and 
received  in  evidence  as  included  in  the  record,  and 
when  such  exhibits  are  neither  attached  to  the  state- 
ment nor  found  among  any  of  the  papers  transmitted 
to  the  supreme  court.19 

The  above  is  certainly  a  hard  and  extreme  case  for 
a  satisfactory  application  of  the  statutory  rule.  But 
should  this  be  a  sufficient  justification  for  a  nonob- 
servance  of  the  rule  ?  And  should  not  the  bill  or  state- 
ment in  the  case  have  been  considered  as  an  absolute 
verity  nevertheless,  and  credited  for  what  it  was  really 
worth,  according  to  its  actual  contents?  It  evidently 
bore  the  required  insignia  of  genuineness,  and  should 
have  been  considered  accordingly. 

We  now  come  to  a  case  which  recognizes  the  statu- 
tory rule,  but  which  holds  that  it  is  not  applicable 
where  it  is  manifest  that  the  bill  or  statement  is  not 
complete,  unless  the  form  of  the  certificate  is  a  combi- 
nation of  the  form  prescribed  when  the  bill  or  state- 

17  State  v.  Wroth,  15  Wash.  621,  47  Pac.  106. 

18  See  Nickeus  v.  Lewis  County,  23  Wash.  125,  62  Pac.  763. 

19  State  ex  rel.  Van  Name  v.  Directors,  14:  Wash.  222,  44 
Pac.  270. 


257        LEGAL  EFFECT  OF  BILL  OR  STATEMENT.       §  123 

ment  has  been  settled  by  the  judge,  and  of  the  form 
prescribed  when  the  bill  or  statement  has  been  settled 
by  the  agreement,  express  or  implied,  of  the  parties.20 

In  this  case  the  court  says:  ''But  it  is  urged  by  re- 
spondent that,  under  the  record,  this  court  would  not, 
in  any  event,  be  justified  in  disturbing  these  findings, 
for  the  reason  that  it  is  apparent  from  the  record  that 
all  the  evidence  is  not  here.  The  certificate  of  the 
court  first  recites  that  it  contains  all  the  evidence, 
whereas  it  is  apparent  that  said  recital  is  erroneous,  as« 
the  depositions  of  four  persons  are  shown  to  have  been 
read  in  evidence,  and  much  time  was  consumed  by 
objections  to  questions  therein.  The  record  discloses 
only  the  names  of  the  several  persons  whose  deposi- 
tions were  read,  the  numbers  of  the  several  inter- 
rogatories challenged  by  objections,  the  objections 
thereto,  and  the  rulings  thereon.  The  deposition  evi- 
dence itself  does  not,  however,  appear  in  the  record. 
The  action  is  triable  de  novo  here,  and  this  court  must 
have  all  the  evidence  before  it  which  was  before  the 
court  below,  in  order  to  so  try  it:  Enos  v.  Wilcox,  3 
Wash.  44,  28  Pac.  364;  Cadwell  v.  First  Nat.  Bank,  3 
Wash.  188,  28  Pac.  365;  Kirby  v.  Collins,  6  Wash.  297, 
32  Pac.  1060;  State  ex  rel.  Van  Name  v.  Directors,  14 
Wash.  222,  44  Pac.  270. 

"It  is  true,  the  judge's  certificate  makes  the  further 
recital  that  the  statement  contains  all  the  material  evi- 
dence, but  it  being  manifest  that  it  does  not  contain  all 
the  evidence,  it  becomes  necessary,  under  section  5060, 
B  ailing  er^s  Code,  that  it  shall  recite  that  it  contains  all 
the  facts  ivhich  the  parties  have  agreed  to  be  all  that  are 
material:  Nickeus  v.  Lewis  County,  23  Wash.  125,  62 

20  Kane  v.  Kane,  35  Wash.  517,  77  Pac.  842.  For  the  dif- 
ferent forms  prescribed  by  the  statute,  see  §  112,  supra. 

17 


§  123      BILLS   OF  EXCEPTIONS   AND   STATEMENTS   OF   FACTS.      258 

Pac.  763.  The  certificate  is  lacking  in  said  particular. 
It  being  manifest,  therefore,  that  all  the  evidence  which 
was  before  the  trial  court  is  not  before  us,  we  cannot, 
in  the  absence  of  agreement  between  the  parties,  try  the 
case  de  novo  with  a  view  to  making  new  findings. 
We  have,  however,  read  the  evidence  that  is  in  the  rec- 
ord, and  we  may  say  that,  standing  alone,  we  think  it 
justifies  the  findings  made  by  the  court,  both  upon  the 
divorce  issue  and  upon  the  money  and  property  fea- 
tures of  the  case.  There  is  much  evidence  in  the  rec- 
ord that  is  here,  but  an  analytical  discussion  of  it 
would  require  much  space,  and  we  believe  it  would 
not  serve  any  useful  purpose,  in  view  of  its  conflicting 
nature.  If  we  were  required  to  make  findings  in  the 
case,  we  should  be  disposed,  from  the  evidence  before 
us,  to  adopt  the  findings  of  the  trial  court,  who  heard 
and  saw  all  the  witnesses  testify." 

The  court  seems  to  have  laid  down  such  a  rule  for 
the  first  time  in  the  case  of  Nickeus  v.  Lewis  County, 
23  Wash.  125,  62  Pac.  763. 

The  court  in  this  case  said:  "The  respondent  moves 
to  strike  the  statement  of  facts  from  the  record  for  the 
alleged  reason  that  it  shows  on  its  face  that  it  does  not 
contain  all  the  material  evidence  adduced  at  the  trial, 
and  especially  plaintiff's  exhibit  A,  and  certain  depo- 
sitions which  were  read  to  the  jury.  Both  the  charac- 
ter and  contents  of  the  exhibit  are  affirmatively  shown 
by  the  testimony  of  the  county  auditor,  but  the  matter 
contained  in  the  depositions  does  not  appear  in  the 
statement.  It  is  the  general  rule,  as  stated  in  the  brief 
of  the  learned  counsel  for  the  respondent,  that  'the 
fact  that  the  statement  is  certified  by  the  judge  as  con- 
taining all  the  evidence  cannot  control  when  it  appears 
on  its  face  that  exhibits  or  depositions  have  been  of- 
fered which  do  not  appear':  State  ex  rel.  Van  Name  v. 


259         LEGAL  EFFECT  OF  BILL  OR  STATEMENT.       §  123 

Directors,  14  Wash.  222,  44  Pac.  270;  Elliott,  Appel- 
late Procedure,  §  824;  Farr  v.  Bach,  13  Ind.  App.  125, 
41  N.  E.  393.  And  if  it  were  true  that  the  certificate 
attached  to  the  statement  of  facts  in  question  contained 
nothing  more  than  the  ordinary  recital  that  the  state- 
ment contains  all  the  material  facts,  etc.,  not  already 
a  part  of  the  record,  we  would  feel  constrained  to  grant 
the  respondent's  motion.  But  the  certificate  of  the 
trial  judge  recites  that  the  foregoing  statement  of  facts 
'contains  all  the  material  facts,  matters,  and  proceed- 
ings heretofore  occurring  in  the  cause,  and  not  already 
a  part  of  the  record,  and  such  thereof  as  the  parties 
have  agreed  to  be  all  that  are  material.'  It  thus  ap- 
pears that  this  is  virtually  an  agreed  statement  of 
facts,  and  the  motion  must  therefore  be  denied." 

It  will  be  noticed  that  Elliott,  Appellate  •  Pro- 
cedure, section  824,  is  cited  as  authority  for  the  state- 
ment that  "It  is  the  general  rule,  as  stated  in  the 
brief  of  the  learned  counsel  for  the  respondent,  that 
'the  fact  that  the  statement  is  certified  by  the  judge  as 
containing  all  the  evidence,  cannot  control  when  it  ap- 
pears on  its  face  that  exhibits  or  depositions  have  been 
offered  which  do  not  appear.'  ' 

But  whatever  may  be  said  of  this  rule  as  a  general 
rule,  it  is  not  applicable  to  the  statutes  of  this  state 
which  make  the  certification  of  the  bill  or  statement  a 
judicial  determination,  and  not  the  mere  ministerial  act 
of  a  person  whose  errors  may  be  corrected  or  disre- 
garded upon  a  mere  inspection  of  the  bill  or  statement. 
The  case  impliedly  recognizes  this  principle.  But  why 
require  a  combination  of  correct  forms  which  the  stat- 
ute prescribes  for  different  occasions,  in  order  that  the 
statutory  rule  may  be  rendered  applicable  to  a  bill  or 
statement  which  appears  to  be  incomplete  notwith- 
standing a  perfect  certificate!  Evidently  for  the  rea- 


§  123      BILLS   OF  EXCEPTIONS   AND   STATEMENTS  OF   FACTS.      260 

son  that  the  statutes  are  supposed  to  require  such  a 
combined  certificate  in  such  cases  in  order  to  render 
the  statutory  rule  applicable.  But  the  statutes  make 
no  provision  for  such  a  certificate.  They  merely  pre- 
scribe two  forms  for  the  certificate,  one  of  which  is 
intended  for  use  when  the  bill  or  statement  has  been 
settled  by  the  agreement,  express  or  implied,  of  the 
parties;  and  the  other  when  the  bill  or  statement  has 
been  settled  by  the  judge;  and  immediately  thereafter 
expressly  provide  that  either  form,  when  properly  em- 
ployed, shall  be  sufficient  to  make  the  bill  or  statement 
an  inseparable  part  of  the  record  and  an  absolute 
verity.21 

It  will  appear  from  a  later  case  which  this  section 
cites,  namely,  the  case  of  Swift  v.  Swift,  39  Wash.  600, 
81  Pac.  1052,  which  is  very  similar  to  the  cases  of 
Kane  v.  Kane  and  Nickeus  v.  Lewis  County,  supra, 
that  the  reasoning  of  these  last  two  cases  is  evidently 
not  approved,  and  that  the  case  of  Kane  v.  Kane, 
supra,  is  no  longer  authority. 

In  another  case  the  court  used  the  following  lan- 
guage: "The  appellants  filed  and  served  a  proposed 
statement  of  facts.  No  amendments  were  proposed 
by  the  respondents.  When  an  appellant  makes  and 
files  a  proposed  statement  of  facts,  and  no  proposed 
amendments  are  filed  and  served,  the  pro'posed  state- 
ment of  facts  becomes  for  all  purposes  an  agreed 
statement  of  facts:  Section  5058,  Ballinger's  Code. 
When,  under  such  circumstances,  the  trial  judge  certi- 
fies,— as  in  this  case, — that  the  record  contains  all  the 
material  facts,  the  statement  is  conclusive  on  the  par- 
ties on  appeal. ' ' 22 

21  See  §  112,  supra. 

22  Powell  v.  Nolan,  27  Wash.  318,  67  Pac.  712,  68  Pac.  389. 


261         LEGAL  EFFECT  OF  BILL  OR  STATEMENT.       §  123 

In  a  very  early  case  which  was  decided  under  former 
statutes,  the  court  expressed  its  views  upon  this  subject 
as  follows: 

"As  to  the  last  point  made,  that  the  instructions  are 
not  all  here,  it  appears  that  three  instructions  were 
given  at  the  trial,  and  only  two  are  contained  in  the 
record.  There  was  no  request  or  attempt  by  any  of 
the  parties  to  have  the  other  one  brought  up.  The 
instructions  here  are  contained  in  the  statement  which 
is  duly  certified  by  the  judge  to  contain  all  the  material 
facts  in  the  cause.  It  is  not  claimed  by  the  appellees 
that  the  instruction  omitted  is  material,  nor  do  they 
ask  to  have  it  brought  here,  and  as  all  the  parties  to 
the  action  and  the  judge  who  tried  the  cause  seem  to 
have  regarded  it  as  unimportant  for  a  fair  considera- 
tion of  the  cause  in  this  court,  it  is  held  by  us  to  be 
unnecessary. ' ' 23 

In  another  case  the  court  said:  "As  to  the  other 
contention,  the  court  has  certified  that  the  record  con- 
tains so  much  of  the  'facts,  matters  and  proceedings 
heretofore  occurring  in  the  cause'  as  is  material  to  an 
appeal  from  the  final  judgment.  This  court  must 
take  this  statement  as  true.  It  must  determine  from 
the  evidence  transmitted  here  whether  or  not  the  error 
was  prejudicial,  and  is  precluded  from  indulging  in 
presumptions  relative  thereto.  The  evidence  trans- 
mitted shows  a  substantial  conflict  as  to  what  the 
facts  were  on  the  matters  embraced  within  the  ex- 
cepted  part  of  the  court's  charge,  and  we  cannot  say 
that  the  verdict  of  the  jury  was  the  only  verdict  that 
could  be  legally  rendered  on  the  evidence  before  them. 

"The  judgment  is  reversed  and  remanded,  with  in- 
structions to  grant  the  appellant  a  new  trial. ' ' 2* 

23  Haas  v.  Gaddis,  1  Wash.  89,  23  Pac.  1010. 

24  State  v.  Dunn,  22  Wash.  67,  60  Pac.  49. 


§  123      BILLS   OF   EXCEPTIONS   AND   STATEMENTS   OF   FACTS.      262 

And  finally,  it  would  seem  from  the  following  lan- 
guage that  the  statutory  rule  is  now  recognized  by  the 
court:  "The  respondent  moves  to  dismiss  the  appeal 
on  the  ground  that  the  statement  of  facts  fails  to  con- 
tain all  the  evidence;  and  in  support  thereof,  calls 
attention  to  the  fact  that  certain  depositions  appear 
in  the  transcript,  over  the  signature  of  the  clerk,  and 
not  in  the  statement  of  facts.  But  it  appears  that  a 
proposed  statement  of  facts  was  served  on  the  respond- 
ent, and  that  she  neither  filed  any  exception  nor  pro- 
posed any  amendments  thereto,  and  that  this  statement 
was  subsequently  certified  by  the  court  to  contain  all 
of  the  material  facts  occurring  in  the  cause,  and  not 
already  a  part  of  the  record.  This  is  sufficient  to  au- 
thorize this  court  to  try  the  case  de  novo.  It  is  from 
what  appears  in  the  statement,  over  the  signature  of  the 
trial  judge,  that  this  court  discovers  the  facts  of  the 
case,  and  it  will  not  presume  that  depositions,  which  do 
not  appear  in  the  statement,  were  admitted  and  read 
in  evidence,  merely  because  the  clerk  has  forwarded 
them  to  this  court.  The  motion  to  dismiss  is 
denied."  25 

And  it  may,  with  perfect  propriety,  be  added  that  the 
court  should  not  presume  that  depositions  which  do 
not  appear  in  the  statement,  although  taken  appar- 
ently for  use  in  the  case,  are  material  to  an  appeal 
merely  because  they  were  admitted  and  read  in  evidence 
when  the  statement  is  duly  certified  to  contain  all  that 
is  material. 

In  the  following  case  the  court  inferred  from  an 
inspection  of  the  body  of  a  duly  certified  statement 
of  facts  that  material  evidence  had  been  omitted 
therefrom;  and  some  of  the  language  employed  would 
indicate  that  under  such  circumstances  a  duly  certified 

"  Swift  v.  Swift,  39  Wash.  600,  81  Pac.  1052. 


263         LEGAL  EFFECT  OF  BILL  OR  STATEMENT.       §  123 

bill  or  statement  would  not  be  treated  as  an  absolute 
verity;  but  the  court  nevertheless  gave  to  the  state- 
ment the  full  credit  to  which  it  was  legally  entitled, 
for  it  reviewed  all  the  matters  contained  therein,  and 
decided  the  cause  in  accordance  with  what  was  ac- 
tually before  it.  And  there  is  no  reason  why  it  should 
not  have  done  so,  for  the  lower  court  had  certified 
that  the  statement  embodied  all  that  was  material, 
and  this  certification  had  never  been  questioned.  The 
statement  contained  the  following  recital:  ''The  de- 
fendant and  cross-complainant  Eckloff  thereupon  in- 
troduced evidence  tending  to  support  the  findings  of 
fact  made  by  the  court." 

But  notwithstanding  this  recital  the  statement  still 
might  have  embodied  all  that  was  really  material,  and 
it  evidently  did,  for  the  judge  so  certified.  A  bill  or 
statement  which  is  duly  certified  can  really  be  of  little 
value,  and  must  always  be  at  least  an  uncertainty,  if  its 
verity  can  be  questioned  upon  a  mere  inspection  of  its 
contents.  If  the  contents  are  satisfactory  to  the  par- 
ties, the  statute  contemplates  that  they  shall  be  satis- 
factory to  the  court.  If  this  were  not  the  rule,  the 
statutes  are  but  of  little  use.  That  the  court  really 
treated  the  statement  as  an  absolute  verity  seems  quite 
clear  from  the  following  excerpt  as  a  whole: 

"In  view  of  these  findings  and  the  certified  state- 
ment that  evidence  not  before  us  was  introduced 
tending  to  sustain  them,  we  cannot  enter  upon  a  con- 
sideration of  the  issue  as  to  what  additional  damages, 
if  any,  should  be  allowed  appellant  for  respondent's 
alleged  delay.  Without  entering  upon  a  detailed  dis- 
cussion of  evidence  now  before  us,  upon  which  appel- 
lant relies,  we  will  nevertheless  state  that,  having  ex- 
amined the  entire  record,  we  could  in  no  event  reach 
the  conclusion  that  it  is  sufficient  to  justify  any  larger 


§  124      BILLS   OF   EXCEPTIONS   AND   STATEMENTS   OP   FACTS.      264 

award  of  damages  to  appellants  than  the  trial  judge 
has  already  made."2* 

It  may  therefore  be  said  to  be  the  rule  of  the  deci- 
sions, as  well  as  the  rule  of  the  statutes,  that  the  bill 
or  statement  when  duly  certified  becomes  an  absolute 
verity.27 

When  the  bill  or  statement  is  stricken  or  disre- 
garded, the  legal  effect,  of  course,  is  that  the  action 
of  the  supreme  court  will  be  limited  and  confined 
merely  to  those  alleged  errors,  if  any,  appearing  upon 
the  remainder  of  the  record  which  is  properly  before 
the  court,  and  to  the  disposal  of  the  cause  according 
to  the  state  or  condition  of  such  truncated  record. 

This  principle  is  so  fundamental,  and  the  cases  in 
support  of  it  so  numerous,  that  a  citation  of  authori- 
ties is  unnecessary.28 

§  124.  Those  Rules  Which  Spring  into  Existence 
When  the  Bill  or  Statement  Becomes  a  Part  of  the 
Record,  the  Nonobservance  of  Which  will  Enlarge  the 
Time  Prescribed  by  Statute  for  the  Service  and  Filing 
of  the  Briefs  on  Appeal. — These  rules  are  purely  stat- 
utory, and  are  provided  for  as  follows: 

"The  copy  of  a  proposed  bill  or  statement  which  is 
served  as  in  this  chapter  prescribed,  shall  be  returned 
to  the  party  serving  the  same  upon  the  bill  or  state- 
ment being  certified,  if  he  has  appealed  to  the  supreme 
court,  or  upon  his  thereafter  appealing,  for  his  use  in 
preparing  his  brief  on  the  appeal,  and  the  time  lim- 
ited by  any  law  or  rule  of  court  for  the  service  and 

26  Seattle  Turning  &  Scroll  Works  v.  Eckloff,  63  Wash. 
82,  114  Pac.  893. 

27  McReavy  v.  Eshelman,  4  Wash.  757,  31  Pac.  35. 

28  Hadzla  v.  Northern  Pacific  Ry.  Co.,  65  Wash.  700,  118 
Pac.  212. 


265        LEGAL  EFFECT  OF  BILL  OE  STATEMENT.       §  124 

filing  of  his  brief  shall  be  enlarged  by  any  delay  in 
returning  such  copy  as  herein  required  to  the  extent 
of  such  delay.  * ' 29 

In  accordance  with  this  plain  statutory  rule  it  is  held 
that  a  failure  on  the  part  of  a  respondent  to  return 
to  appellant  the  copy  of  the  statement  of  facts,  as  re- 
quired by  the  statute,  will  excuse  the  failure  on  the 
part  of  appellant  to  serve  and  file  his  brief  in  time.80 

The  statute  also  prescribes  the  following  rule: 
"When  he  [the  appellant]  serves  his  brief  he  shall 
return  such  copy  to  the  party  on  whom  it  was  orig- 
inally served,  and  his  brief  shall  not  be  deemed  served 
till  such  copy  is  so  returned  by  him. ' ' 8I 

It  is  therefore  another  rule  of  the  statute  that  an 
appellant  must,  when  he  serves  his  brief,  return  the 
copy  of  the  bill  or  statement  to  the  one  on  whom  it 
was  originally  served,  and  that  in  case  of  his  failure 
so  to  do,  the  time  limited  by  any  law  or  rule  of  court 
for  the  service  and  filing  of  such  party's  brief  will  be 
enlarged  by  any  delay  in  returning  such  copy  to  the 
extent  of  such  delay.82 

The  steps  and  proceedings  prescribed  by  these  rules 
are  not ' '  steps  and  proceedings  in  the  cause  itself,  rest- 
ing upon  the  jurisdiction  originally  acquired  by  the 
court  in  the  cause";  for  they  are  steps  and  proceed- 
ings which  are  not  required  to  be  taken  until  the  time  of 
and  after  the  certification  of  the  bill  or  statement.3* 

29  Rem.  &  Bal.  Code,  §  394.     See  §  15,  supra. 

30  Jefferson  County  v.  Trumbull,  31  Wash.  217,  71  Pac. 
787;  Bailey  v.  Seattle  &  Renton  Ry.  Co.,  31  Wash.  685,  71 
Pac.  1134. 

31  Rem.  &  Bal.  Code,  §  394.     See  §  15,  supra. 

32  With  reference  to  the  time  prescribed  for  the  service 
and  filing  of  the  briefs  on  appeal,  see  Rem.  &  Bal.  Code, 
§  1730.     See  §  22,  supra. 

83  See  Rem.  &  Bal.  Code,  §  393.     See  §  14,  supra. 


§  124     BILLS   OP  EXCEPTIONS   AND   STATEMENTS   OF   FACTS.      266 

Their  nonobservance  may  therefore  properly  be 
shown  in  the  first  instance  by  affidavits  filed  in  the 
supreme  court.3* 

84  Jefferson  County  v.  Trumbull,  31  Wash.  217,  71  Pac. 
787;  Bailey  v.  Seattle  &  Renton  Ey.  Co.,  31  Wash.  685,  71 
Pac.  1134. 


INDEX. 

[References  are  to  Sections.] 

A 

Adverse  Party. 

definition  of,  55,  56. 

distinguished  from  prevailing  party,  56. 

distinguished  from  "any  other  party  who  has  appeared  in  the 

cause,"  56. 
need  not  be  served  with  notice  of  filing  the  bill  or  statement, 

54,  57,  58. 

Affidavits. 

must  be  embodied  in  bill  or  statement  except  when  made  parts 
of  motions,  44. 

Amendments. 

proposal  of  defined,  69. 

when  proposed  all  matters  should  be  embodied  in  a  single  bill  or 
statement,  42. 

rule  that  bill  or  statement  must  be  substantially  complete  does 
not  conflict  with  statutory  remedy  of  proposed  amendments, 
42. 

time  for  proposing  may  be  postponed  by  motion  made  in  good 
faith  to  compel  proposal  of  substantial  bill  or  statement,  42. 

motion  should  point  out  defects,  42. 

must  be  substantial  in  their  character,  70. 

when  they  must  be  filed  and  served,  70. 

statutory  time  for  filing  and  service  may  be  waived,  71. 

bill  or  statement  when  once  filed  cannot  be  withdrawn  for  pur- 
pose of  amendment  and  refiling  after  the  time  for  proposing 
amendments  has  expired,  even  though  the  time  limited  by 
statute  for  the  filing  and  service  of  the  bill  or  statement 
has  not  expired,  71. 

is  not  the  correctness  of  this  rule  fairly  debatable?  120. 

where,  however,  the  time  for  proposing  amendments  has  not 
expired,  a  bill  or  statement  filed  without  service  may,  under 
an  order  of  the  court  or  judge,  be  withdrawn  and  refiled  and 
(267) 


268  INDEX. 

[References  are  to  Sections.] 

Amendments — Continued. 

served  at  any  time  before  the  expiration  of  the  statutory 
limit  for  the  filing  and  service,  71. 

failure  to  file  and  serve  proposed  amendments  within  the  time 
prescribed  by  statute  constitutes  a  settlement  of  the  bill  or 
statement  by  implied  agreement  of  the  parties,  72. 

filing  of  amendments  should  precede  the  service,  72. 

where  amendments  are  not  proposed  within  the  time  prescribed 
by  statute,  the  bill  or  statement  may  be  certified  without 
notice  at  instance  of  either  party,  at  any  time,  on  proof  being 
filed  of  its  service,  and  that  no  amendments  have  been  pro- 
posed, 72.  , 

the  filing  in  such  cases  of  proof  of  service  of  the  bill  or  statement, 
and  that  no  amendments  have  been  proposed,  is  intended  for 
the  benefit  of  the  court,  and  is  not  jurisdictional,  72. 

proof  of  filing,  74. 

kinds  of  service  provided  for  by  statute,  75. 

by  whom  amendments  may  be  proposed,  58,  76. 

various  methods  of  serving  the  proposed  amendments,  57,  77. 

upon  whom  they  must  be  served,  78. 

proof  of  service  of  amendments,  59,  79. 

proof  that  no  amendments  have  been  proposed,  72. 

whether  time  for  proposing  amendments  may  be  extended,  80. 

when  the  time  within  which  proposed  amendments  must  be  filed 
and  served  begins  to  run,  81. 

whether  the  beginning  of  such  time  may  be  postponed,  82. 

method  of  computing  the  time  within  which  proposed  amendments 
must  be  filed  and  served,  83. 

when  proposed  amendments  may  be  accepted,  84. 

methods  of  accepting  proposed  amendments,  85. 

methods  of  proving  acceptance  of  proposed  amendments,  86. 

acceptance  of  proposed  amendments  constitutes  a  settlement  of 
the  bill  or  statement  by  express  agreement  of  the  parties,  87. 

where  amendments  are  accepted  the  bill  or  statement  as  so 
amended  may  be  certified  without  notice,  at  the  instance  of 
either  party,  at  any  time,  on  proof  being  filed  of  the  service 
of  the  original  bill  or  statement  and  the  service  and  accept- 
ance of  the  amendments,  87. 

the  filing  in  such  cases  of  proof  of  the  service  of  the  original  bill 
or  statement  and  the  service  and  acceptance  of  the  amend- 
ments is  intended  for  the  benefit  of  the  court  and  is  not  juris- 
dictional, 87. 

when  proposed  amendments  are  agreed  to  or  allowed,  the  whole 

should  be  reduced  to  a  single  bill  or  statement,  42. 
See,  also,  Proof. 


INDEX.  269 

[References  are  to  Sections.] 

"Any  Other  Party  Who  has  Appeared  in  the  Cause." 
definition  of  the  clause,  56. 
distinguished  from  "prevailing  party,"  56. 
distinguished  from  "adverse  party,"  56. 

must  be  served  with  notice  of  the  filing  of  the  bill  or  statement,  58. 
need  not  be  served  with  notice  of  application  to  extend  the  time 

for  the  filing  and  service  of  the  bill  or  statement,  14,  58. 
reason  for  the  rule  that  he  need  not  be  served  with  notice  of  the 

application  to  extend  the  time  for  the  filing  and  service  of 

the  bill  or  statement,  58. 
may  propose  amendments  to  the  bill  or  statement  when  he  joins 

in  the  appeal,  58. 

"Any  Other  Party." 

definition  of  the  phrase,  76. 


B 

Bill  of  Exceptions. 

definition  of,  40. 

distinguished  from  statement  of  facts,  40. 

unnecessary  when  findings  of  fact  are  full  and  complete  and  the 
question  to  be  determined  is  whether  the  judgment  or  decree 
is  supported  by  the  findings,  46. 

rule  is  otherwise  when  findings  are  not  full  and  complete,  46. 

whether  supplemental  bills  qf  exceptions  are  permitted,  116. 

proposal  of  defined,  50. 

what  must  be  embodied  in.  See  Preparation  of  the  Bill  or  State- 
ment. 

form  of.  See  Preparation  of  the  Bill  or  Statement.  See,  also, 
Form  of  the  Bill  or  Statement. 

proposal  of.    See  Proposal  of  the  Bill  or  Statement. 

what  must  not  be  embodied  in.  See  Preparation  of  the  Bill  or 
Statement. 

certification  of.     See  Certification  of  the  Bill  or  Statement. 

preparation  of.    See  Preparation  of  the  Bill  or  Statement. 

extension  of  time  for  filing  and  serving.  See  Filing  of  the  Bill  or 
Statement.  See,  also,  Service  of  the  Bill  or  Statement. 

filing  of.     See  Filing  of  the  Bill  or  Statement. 

legal  effect  of  when  duly  certified.  See  Legal  Effect  of  Duly  Cer- 
tified Bill  or  Statement. 

motions  made  to  supreme  court  in  first  instance  to  strike.  See 
Motions  Made  to  the  Supreme  Court  in  the  First  Instance, 
and  Based  upon  Various  Grounds,  to  Strike  the  Bill  or  State- 
ment from  the  Cause. 


270  INDEX. 

[References  are  to  Sections.] 

Bill  of  Exceptions — Continued. 

notice  of  filing.  See  Notice  of  Filing  the  Bill  or  Statement.  See, 
also,  Filing  of  the  Bill  or  Statement. 

notice  of  application  to  extend  time  for  filing  and  serving.  See 
Notice  of  Application  to  Extend  Time  for  Filing  and  Serving 
the  Bill  or  Statement. 

notice  of  application  to  settle  and  certify.  See  Notice  of  Appli- 
cation to  Settle  and  Certify  the  JM11  or  Statement. 

settlement  of.     See  Settlement  of  the  Bill  or  Statement. 

service  of.    See  Service  of  the  Bill  or  Statement. 

who  is  entitled  to.     See  Party  Entitled  to  a  Bill  or  Statement. 

place  where  motions  relating  to  may  be  heard.     See  Place. 

place  where  orders  relating  to  may  be  made.     See  Place. 

judge  to  whom  motions  relating  to  may  be  made.     See  Judge. 

judge  who  may  make  orders  relating  to.     See  Judge. 

proof  of  all  matters  relating  to.     See  Proof. 

by  whom  amendments  to  may  be  proposed.  See  Amendments. 
See,  also,  Any  Other  Party  Who  has  Appeared  in  the  Cause. 

legal  effect  of  failure  to  propose  amendments  to  within  the  time 
prescribed  by  statute.  See  Amendments. 

legal  effect  of  acceptance  of  proposed  amendments  to.  See 
Amendments. 

bill  of  exceptions  is  an  indivisible  entity,  116. 

See,  generally,  Preparation  of  the  Bill  or  Statement;  Certifica- 
tion of  the  Bill  or  Statement;  Costs  of  the  Preparation  of 
the  Bill  or  Statement. 


Certification  of  the  Bill  or  Statement. 

definition  of,  89,  91. 

is  judicial  act,  89. 

distinguished  from  settlement,  89. 

propriety  of  considering  the  certification  in  connection  with  the 
settlement,  90. 

when  notice  of  settlement  and  certification  is  not  required,  92. 

where  amendments  are  not  proposed  within  the  time  prescribed 
by  statute,  the  bill  or  statement  may  be  certified  without  no- 
tice, at  the  instance  of  either  party,  at  any  time,  on  proof 
being  filed  of  its  service,  and  that  no  amendments  have  been 
proposed,  72. 

the  filing  in  such  cases  of  proof  of  service  of  the  bill  or  statement 
and  that  no  amendments  have  been  proposed  is  intended  for 
the  benefit  of  the  court  or  judge,  and  is  not  jurisdictional,  72. 


INDEX.  271 

[References  are  to  Sections.] 

Certification  of  the  Bill  or  Statement — Continued. 

where  amendments  are  accepted,  the  bill  or  statement  as  so 
amended  may  be  certified  without  notice,  at  the  instance  of 
either  party,  at  any  time,  on  proof  being  filed  of  the  service 
of  the  original  bill  or  statement  and  the  service  and  accept- 
ance of  the  amendments,  87. 

the  filing  in  such  cases  of  proof  of  the  service  of  the  original  bill 
or  statement  and  the  service  and  acceptance  of  the  amend- 
ments is  intended  for  the  benefit  of  the  court  or  judge,  and 
is  not  jurisdictional,  87. 

when  notice  of  settlement  and  certification  is  required,  93. 

notice  may  be  waived,  93. 

when  the  notice  may  be  given,  94. 

practice  of  serving  notice  at  time  of  service  of  bill  or  statement 
not  sanctioned,  94. 

who  may  give  the  notice,  95. 

upon  whom  the  notice  must  be  served,  96. 

methods  of  serving  the  notice,  97. 

proof  of  service  of  the  notice,  98. 

what  the  notice  must  contain,  99. 

the  judge  to  whom  the  application  may  be  made,  and  therefore 
the  judge  whom  the  notice  may  designate,  100. 

what  notice  should  be  given  of  the  hearing  of  the  application,  101. 

method  of  computing  the  time  which  the  notice  must  give,  102. 

how  the  time  of  the  hearing  may  be  postponed,  103. 

the  place  where  the  hearing  may  be  held,  and  therefore  the  place 
which  the  notice  must  designate,  104. 

how  the  place  of  the  hearing  may  be  changed,  105. 

when  a  new  notice  must  be  given,  106. 

where  the  certification  may  be  made,  108. 

when  the  certification  may  be  made,  107,  94. 

by  whom  the  certification  may  be  made,  109,  89. 

the  number  of  bills  or  statements  which  may  be  certified,  110. 

the  forms  of  the  certificate,  112. 

whether  the  prescribed  form  may  be  varied  or  changed,  113. 

when  the  judge  may  correct  or  supplement  his  certificate,  114. 

what  is  meant  by  correcting  or  supplementing  the  certificate,  115. 

when  duly  certified  the  bill  or  statement  becomes  an  inseparable 
part  of  the  record,  122. 

when  duly  certified  the  bill  or  statement  becomes  an  absolute 
verity,  123. 

copy  of  proposed  bill  or  statement  which  is  served  shall  be  re- 
turned to  the  party  serving  the  same  upon  the  bill  or  state- 
ment being  certified,  if  he  has  appealed  to  the  supreme 


272  INDEX. 

[References  are  to  Sections.] 

Certification  of  the  Bill  or  Statement — Continued. 

court,  or  upon  his  thereafter  appealing,  for  his  use  in  pre- 
paring his  brief  on  appeal,  and  the  time  limited  by  any  law 
or  rule  of  court  for  the  service  and  filing  of  his  brief  shall 
be  enlarged  by  any  delay  in  returning  such  copy  to  the 
extent  of  such  delay,  124. 

When  an  appellant  serves  his  brief  he  shall  return  the  copy 
of  the  bill  or  statement  to  the  party  on  whom  it  was 
originally  served,  and  his  brief  shall  not  be  deemed  served 
till  such  copy  is  so  returned  by  him,  124. 

remedies  to  which  a  complaining  party  may  resort,  117,  118, 
119,  120. 

the  meaning  of  the  phrase  "final  judgment  in  the  cause"  when 
employed  with  reference  to  the  number  of  bills  or  state- 
ments which  may  be  certified,  110,  111. 

•whether  supplemental  bills   or  statements   are   permitted,   116. 

legal   effect  of   duly  certified   bill    or   statement,   121. 

Certiorari. 

when  the  remedy  may  be  resorted  to,  119. 

Charges  to  a  Jury. 

exceptions  to,  how  taken,  5. 

exceptions  to  refusal  of  requested  instructions,  how  taken,  5. 

when  exceptions  may  be  taken  to  instructions,  5,  31. 

•when  exceptions  may  be  taken  to  refusal  of  requested  instruc- 
tions, 5,  31. 

charges  to  a  jury  made  wholly  in  writing  become  a  part  of  the 
record  when  filed,  and  should  not,  therefore,  be  embodied 
in  the  bill  or  statement,  46. 

formerly  charges  to  a  jury  made  wholly  in  writing  did  not 
become  a  part  of  the  record  when  filed,  46. 

instructions  requested  in  writing  to  be  given  as  part  of  a  charge 
become  a  part  of  the  record  when  filed,  and  should  not, 
therefore,  be  embodied  in  the  bill  or  statement,  46. 

oral  charges  should  be  embodied  in  the  bill  or  statement,  44. 

Commissioners. 

exceptions  to  reports  of  necessary,  3. 

exceptions  to  findings  and  conclusions  in  reports  of  necessary,  3. 

how   exceptions   to   reports   and  findings   and   conclusions   of   are 

taken,  4. 
when  exceptions  to  reports  and  findings  and  conclusions  of  may  be 

taken,  4. 


INDEX.  273 

[References  are  to  Sections.] 

Commissioners — Continued. 

rulings  or  decisions  of,  not  already  a  part  of  the  record,  must 
be  embodied  in  the  bill  or  statement,  9. 

reports  of  with  the  testimony  and  other  evidence  returned  into 
court  therewith  become  a  part  of  the  record  when  filed  by  the 
commissioners,  and  should  not,  therefore,  in  sueh  a  case;  be 
embodied  in  the  bill  or  statement,  46. 

the  testimony  and  other  evidence  must,  however,  be  returned 
into  court  with  his  report  by  the  commissioner,  for  if  it  is 
transcribed  and  filed  by  one  of  the  parties  it  is  not  a  part 
of  the  record,  and  must,  in  such  a  case,  be  embodied  in  the 
bill  or  statement,  46. 

Computation  of  Time. 

"time  is  computed  by  excluding  the  first  day  and  including  the 
last,  unless  the  last  is  a  holiday  or  Sunday,  and  then  it  is 
also  excluded,  68,  83,  102. 

Consolidated  Cases. 

in  consolidated  cases  but  one  bill  or  statement  is  necessary,  46. 

on  appeal  in  consolidated  cases  facts,  matters  and  proceedings 
relating  to  the  cause  with  which  the  appeal  is  not  concerned 
should  not  be  embodied  in  the  bill  or  statement,  46. 

Contents  of  the  Bill  or  Statement. 

See  Preparation  of  the  Bill  or  Statement;  What  the  Bill 
or  Statement  Should  Contain;  What  must  not  be  Embodied 
in  the  Bill  or  Statement. 

Costs   of  the   Preparation   of   the   Bill   or   Statement. 

in  civil  actions  and  proceedings  costs  will  be  allowed  to  a  pre- 
vailing party  who  is  without  fault,  47. 

in  criminal  actions  costs  will  be  allowed  to  a  successful  de- 
fendant, 47. 

the  costs  cannot  exceed  ten  cents  per  folio,  47. 

costs  are  otherwise  within  the  discretion  of  the  court,  47. 

county  cannot  be  charged  with  costs  of  preparation  of  the  bill 
or  statement  in  civil  causes  to  which  it  is  not  a  party. 

whether  county  can  be  charged  with  costs  of  preparation  of 
the  bill  or  statement  in  criminal  actions  on  appeal  in  forma 
pauperis  is  doubtful,  47. 

cost  bill  should  show  number  of  folios  by  actual  count,  47. 

where  no  actual  count  is  made,  the  clerk's  estimate  made  by 
counting  a  number  of  pages  and  taking  an  average  of  these 
18 


274  INDEX. 

[References  are  to  Sections.] 

Costs  of  the  Preparation  of  the  Bill  or  Statement— Continued. 

as  an  average  of  the  whole  will  be  preferred  to  a  party's 
estimate  made  by  claiming  a  specified  number  of  folios 
per  page  as  the  average  because  he  had  found  that  such 
was  the  general  average  of  similar  work,  47. 

Court. 

rulings   or  decisions   of  court   or   judge,   not   already   a   part   of 
the  record,  must  be  embodied  in  the  bill  or  statement,  9,  44. 

See  Judge;  Exceptions;  Findings  of  Pact  and  Conclusions  of 
Law;  Piling  of  the  Bill  or  Statement;  Certification  of  the 
Bill  or  Statement. 


D 

Decisions. 

decisions  not  already  a  part  of  the  record  must  be  embodied 
in  the  bill  or  statement,  9,  44. 

decisions  embodied  in  written  judgments,  orders  or  journal  en- 
tries, together  with  all  exceptions^  if  any,  taken  to  any 
thereof,  become  a  part  of  the  record  when  filed,  and  should 
not,  therefore,  be  embodied  in  the  bill  or  statement,  46. 

Definitions. 

exception  defined,  2. 

bill   of   exceptions   defined,   40. 

statement  of  facts   defined,  40. 

adverse  party  defined,  55,  56. 

the   clause    "any   other   party  who  has  appeared   in   the   cause" 

defined,    56. 

proposal  of  amendments  defined,  69. 
certification  of  bill  or  statement  defined,  89,  91. 
proposal  of  bill  or  statement  defined,  50. 
proposing   party   defined,    78. 
record  defined,  46. 
prevailing  party  defined,  56. 
the  phrase  "any  other  party"  defined,  76. 
settlement  of  the  bill  or  statement   defined,   89. 
the   phrase    "either   party"    defined,    95. 
the  word  "other"  defined,  96. 
the  infinitive  and  its  object  "to  try  the  case,"  as  employed  with 

reference  to  the  right  of  a  judge  pro  tempore,  defined,  109. 
"final   judgment   in    the    cause,"    as    used   with    reference    to    the 

number  of  bills  of  exceptions  and  statements  of  facts  which 


INDEX.  275 

[Reference!  are  to  Sections.] 

Definitions— Continued. 

may  be  certified  after  the  rendition  of  the  "final  judgment 
in  the  cause,"  defined,  and  the  meaning  of  the  statute  con- 
sidered, 110,  111. 

the   infinitive   "to   correct"    defined,   115. 

the  infinitive  "to  supplement"  defined,  115. 

the  phrase  "according  to  the  fact"  defined,  115. 

correcting  or  supplementing  the  certificate  according  to  the  fact 
defined,  115. 

"a  proper  ease"  for  mandamus  defined,   117. 

legal  effect  of  a  duly  certified  bill  or  statement  defined,  121. 

Depositions  and  Other  Written  Evidence  on  File. 

should    be    properly    marked    for    identification,    45. 

should  be  appropriately  referred  to,  45. 

simple  statement  that  the  exhibit,  giving  the  mark  of  identifica- 
tion, was  offered  and  received  in  evidence,  is  an  appropriate 
reference;  and  this  is  all  that  is  necessary  to  make  the 
deposition  or  exhibit  a  part  of  the  bill  or  statement,  45. 

depositions  and  other  written  evidence  on  file,  except  affidavits 
which  have  been  made  parts  of  written  motions,  and  except- 
ing evidence  which  has  been  returned  into  court  by  referees 
or  commissioners  with  their  reports,  are  not  already  a  part 
of  the  record,  and  should  therefore  be  embodied  in  the  bill 
or  statement,  45. 

affidavits  which  have  been  made  parts  of  motions,  and  evidence 
returned  into  court  by  referees  or  commissioners  with  their 
reports  become,  when  filed,  a  part  of  the  record;  and  need 
not,  therefore,  be  embodied  in  the  bill  or  statement,  44. 

the  testimony  and.  other  evidence  must,  however,  be  returned 
into  court  with  their  reports  by  the  referees  or  commissioners; 
for,  if  transcribed  and  filed  by  one  of  the  parties,  it  is  not 
a  part  of  the  record,  and  in  such  a  case  must  be  embodied 
in  the  bill  or  statement,  44. 

attachment  to  the  bill  or  statement  is  not  essential,  though 
proper  and  advisable,  45. 

copies  thereof  need  not  be  served  with  copy  of  the  bill  or  state- 
ment, 45. 

originals   or   copies   may  be   used,   45. 

may  be   attached  by  counsel  before  certification,   45. 

may  be  attached  by  the  clerk,  45. 

need  not  be  attached  unless  judge  directs,  45. 

it  seems   that  they   may   be  attm-hrd  to   the  transcript,   45. 

but  they  cannot  be  embodied  in  the  transcript,  45. 


276  INDEX. 

[References  are  to  Sections.! 

Depositions  and  Other  Written  Evidence  on  File — Continued. 

copies  thereof  may  be  bodily  inserted  in  the  bill  or  statement,  45. 
should  be  indexed  and  classified,  42. 


E 

Erasures. 

bill  or  statement  should  be  free  from,  42. 

Evidence. 

exception  need  not  be  taken  to  ruling  on  objection  to  admission  of 

evidence,  6. 
evidence  not  already  a  part  of  the  record  must  be  embodied  in 

the  bill  or  statement  when  material,  9. 
all  material  nonrecord  evidence  should  be  embodied  in  the  bill  or 

statement,  44. 
affidavits  which  have  been  made  parts  of  written  motions  become 

a  part  of  the  record  when  the  motions  are  filed,  44. 
evidence  returned  into  court  by  referees  or  commissioners  with 

their  reports  become  a  part  of  the  record  when  filed,  44. 
unless  the  evidence  is  returned  into  court  with  their  reports  by 

the  referees  or  commissioners,  it  does  not  become  a  part  of  the 

record,  and  should,  therefore,  in  such  cases,  be  embodied  in 

the  bill  or  statement,  46. 

Exceptions. 

exception  defined,  2. 

when  unnecessary,  3,  6. 

when  necessary,  3,  4,  5,  7. 

how  taken  to  reports  of  referees  or  commissioners,  and  to  findings 
and  conclusions,  4. 

when  may  be  taken  to  reports  of  referees  or  commissioners,  and 
to  findings  and  conclusions,  4. 

how  taken  to  instructions,  5. 

how  taken  to  refusal  of  requested  instructions,  5. 

when  may  be  taken  to  instructions,  5,  31. 

when  may  be  taken  to  refusal  of  requested  instructions,  5,  31. 

need  not  be  taken  to  ruling  on  objection  to  admission  of  evi- 
dence, 6. 

how  taken  to  rulings  or  decisions  in  course  of  trial  or  hearing,  7. 

when  necessary  to  rulings  or  decisions  not  already  a  part  of  the 
record,  they  should  be  embodied  in  the  bill  or  statement,  8. 

exceptions  to  findings  and  conclusions  are  necessary,  3. 

exceptions  to  reports  of  referees  or  commissioners  are  necessary,  3. 


INDEX.  277 

[Reference!  are  to   Sections.] 
• 
Exceptions — Continued. 

exceptions  to  rulings  or  decisions  embodied  in  a  written  judg- 
ment, order  or  journal  entry  in  a  cause  are  neither  necessary 
nor  proper,  46. 

exceptions  to  the  report  of  a  referee  or  commissioner,  or  to  find- 
ings of  fact  or  conclusions  of  law  which  are  duly  noted  in 
the  margin  or  at  the  foot  of  the  report  or  decision,  are  already 
a  part  of  the  record,  and  need  not  be  embodied  in  the  bill 
or  statement,  4,  46. 

written  exceptions  to  the  report  of  a  referee  or  commissioner,  or 
to  findings  of  fact  or  conclusions  of  law,  become  a  part  of 
the  record  when  duly  filed,  and  need  not,  therefore,  be  em- 
bodied in  the  bill  or  statement,  4,  46. 

written  exceptions  to  the  refusal  to  make  requested  findings  and 
conclusions  become  a  part  of  the  record  when  filed,  and  need 
not  be  embodied  in  the  bill  or  statement,  46. 

exceptions  which  are  noted  in  the  margin  or  at  the  foot  of  the 
refusal  to  make  requested  findings  and  conclusions  are  a  part 
of  the  record,  and  need  not  be  embodied  in  the  bill  or  state- 
ment, 46. 

all  other  exceptions  should  be  embodied  in  the  bill  or  statement, 

3,  4,  5,  7,  44. 
See,  also,  Findings  of  Fact  and  Conclusions  of  Law. 

Exhibits. 

See  Depositions  and  Other  Written  Evidence  on  File. 

Extension  of  Time  for  Filing  and  Serving  the  Bill  or  Statement. 
See  Filing  of  the  Bill  or  Statement. 


P 

Files. 

all  files  of  the  superior  court  in  the  cause,  including  reports  of 
referees  or  commissioners  with  the  testimony  and  other  evi- 
dence returned  into  court  therewith  by  the  referees  or  com- 
missioners, and  affidavits  which  have  been  made  parts  of 
motions,  but  excluding  all  other  written  evidence  on  file,  be- 
come a  part  of  the  record  when  filed,  and  need  not  be 
embodied  in  the  bill  or  statement,  46. 

unless  the  evidence  is  returned  into  court  with  their  reports  by 
ihe  referees  or  commissioners,  it  does  not  become  a  part  of  the 
record,  and  should,  in  such  cases,  be  embodied  in  the  bill  or 
statement,  46. 


278  INDEX. 

[References  are  to  Sections.] 
Tilea — Continued. 

all  files  relating  to  appellate  proceedings  become  a  part  of  the 
record  when  filed,  and  should  not  be  embodied  in  the  bill  or 
statement,  46. 

Filing  of  the  Bill  or  Statement. 

filing  and  service  of  the  bill  or  statement  are  necessary,  51. 

filing  must  precede  the  service,  52. 

proof  of  filing,  53. 

notice  of  the  filing  need  not  be  served  on  the  "adverse  party,"  54, 

56,  57,  58. 
notice  of  the  filing  need  only  be  served  on  "any  other  party  who 

has  appeared  in  the  cause,"  54,  56,  57,  58. 
meaning  of  the  clause  "any  other  party  who  has  appeared  in  the 

cause,"  56. 

such  party  distinguished  from  "prevailing  party"  and  from  "ad- 
verse party,"  56. 
reason  for  the  rule  requiring  notice  of  the  filing  of  the  bill  or 

statement  to  be  served  on  "any  other  party  who  has  appeared 

in  the  cause,"  58. 
notice  of  application  to  extend  the  time  for  the  filing  and  service 

of  the  bill  or  statement  need  not  be  served  on  "any  other 

party  who  has  appeared  in  the  cause,"  58,  61. 
reason  for  the  rule  that  notice  of  application  to  extend  the  time 

for  the  filing  and  service  of  the  bill  or  statement  need  not 

be  served  on   "any    other    party    who  has  appeared  in  the 

cause,"  58. 
when  the  bill  or  statement  must  be  filed  and  served  in  the  absence 

of  any  extension  of  time,  60. 
time  may  be  extended  once  or  more,  but  not  for  more  than  sixty 

days  additional  in  all,  14,  61. 

methods  of  extending  the  time  for  filing  and  service,  61. 
time  may  be  extended  by  stipulation  of  the  parties,  61. 
"any  other  party  who  has  appeared  in  the  cause"  is  not  a  party 

who  may  join  in  the  stipulation,  58,  61. 
time  may  be  extended  by  order  of  the  court  or  judge,  61". 
when  time  is  extended  by  stipulation  an  order  is  not  necessary,  61. 
the  stipulation  must  be  in  writing  duly  filed,  or  must  otherwise 

be  a  matter  of  record,  61. 
when  not  extended  by  stipulation,  but  by  order  of  the  court  or 

judge,  it  must  be  for  good  cause  shown,  and  on  such  terms 

as  may  be  just,  made  on  notice  to  adverse  party,  61. 


INDEX.  279 

[Reference!  are  to  Sections.] 

Filing  of  the  Bill  or  Statement— Continued. 

notice  of  application  for  extension  should  specify  the  time  and 
place  of  the  hearing,  and  the  judge  to  whom  the  application 
will  be  made,  61. 

when  proper  notice  of  application  for  extension  is  once  given,  new 
notice  is  not  necessary  when  application  is  not  heard  at 
appointed  time,  and  party  giving  notice  is  not  at  fault,  61. 

notice  of  application  for  extension  need  give  only  reasonable  no- 
tice of  the  hearing,  61. 

notice  that  the  application  would  be  heard  at  3  o'clock  in  the 
afternoon  of  the  same  day  on  which  the  notice  was  served 
has  been  held  to  be  sufficient  notice,  61. 

order  granting  extension  of  time  will  not  be  disturbed  unless  it 
is  based  upon  an  erroneous  application  of  rules  of  law,  61. 

order  refusing  to  grant  an  extension  of  time  will  be  reversed  only 
for  abuse  of  discretion,  or  erroneous  application  of  rules  of 
law,  61. 

order  must  be  made  and  entered  before  the  expiration  of  the  time 
limited  thereby  for  the  filing  and  service  of  the  bill  or  state- 
ment, 61. 

this  rule,  perhaps,  would  not  apply  to  the  filing  of  the  stipulation, 
but  the  prompt  filing  thereof  is  advisable,  61. 

time  within  which  the  bill  or  statement  must  be  filed  and  served 
when  an  extension  has  been  granted,  62. 

when  an  appeal  is  taken  from  two  or  more  orders,  the  time  lim- 
ited for  the  filing  and  service  of  the  bill  or  statement  is 
applied  to  each  of  the  orders,  62. 

place  where  application  for  extension  of  time  may  be  heard,  63. 

the  judge  who  may  make  the  order  extending  the  time,  and  to 
whom,  therefore,  the  application  may  be  made,  64. 

place  where  the  order  extending  the  time  may  be  made,  65. 

when  the  time  for  the  filing  and  service  begins  to  run,  66. 

how  the  beginning  of  such  time  may  be  postponed,  67. 

may  be  postponed  by  the  death  of  a  party  after  the  rendition  of 
a  final  judgment,  67. 

may  be  postponed  by  an  application  seasonably  made  to  set  aside 
an  order  or  the  final  judgment  upon  the  ground  that  it  has 
been  irregularly  entered,  67. 

may  be  postponed  by  a  motion  for  a  new  trial  which  has  been 
seasonably  made,  67. 

may  be  postponed  by  the  reversal  of  a  favorable  ruling  which 
prevented  an  appeal  from  an  unfavorable  one,  67. 

may  be  postponed  by  the  application  of  the  principle  of  estop- 
pel, 67. 


280  INDEX. 

[References  are  to  Sections.] 

Filing  of  the  Bill  or  Statement — Continued. 

method  of  computing  the  time  within  which  the  bill  or  statement 
must  be  filed  and  served,  68. 

bill  or  statement  when  once  filed  cannot  be  withdrawn  for  the 
purpose  of  amendment  and  refiling  after  the  time  for  pro- 
posing amendments  has  expired,  even  though  the  time  limited 
by  statute  for  the  filing  and  service  of  the  bill  or  statement 
itself  has  not  expired,  71. 

is  not  the  correctness  of  this  rule  fairly  debatable!  120. 
See,  also,  Proof. 

Findings  of  Fact  and  Conclusions  of  Law. 

findings  of  fact  and  conclusions  of  law  become,  when  filed,  a  part 
of  the  record,  and  need  not,  therefore,  be  embodied  in  the 
bill  or  statement,  46. 

findings  of  fact  and  conclusions  of  law  which  have  been  requested 
and  refused  become,  when  filed,  a  part  of  the  record,  and 
need  not,  therefore,  be  embodied  in  the  bill  or  statement,  46. 

bill  or  statement  unnecessary  when  findings  are  full  and  complete 
and  the  question  to  be  determined  is  whether  the  judgment 
or  decree  is  supported  by  the  findings,  46. 

rule  is  otherwise  when  findings  are  not  full  and  complete,  46. 

exceptions  to,  how  taken,  4. 

when  exceptions  to  may  be  taken,  4. 

exceptions  to  are  necessary,  when,  3,  122. 

exceptions  to  should  not  be  general,  122. 

exceptions  to  refusal  to  make  requested  findings  should  not  fee 
general,  122. 

while  a  general  exception  to  all  the  findings  is  insufficient  unless 
it  appears  that  each  and  all  are  erroneous,  the  rule  that  the 
bill  or  statement  will  be  stricken  does  not  apply,  it  is  held, 
where  error  is  assigned  on  the  action  of  the  trial  court  in 
excluding  evidence  that  might  have  changed  the  character  of 
the  findings,  122. 

exceptions  to  which  are  duly  noted  in  the  margin  are  already  a 
part  of  the  record,  and  need  not  be  embodied  in  the  bill  or 
statement,  4,  46. 

exceptions  which  are  noted  in  the  margin  of  the  refusal  to  make 
requested  findings  are  already  a  part  of  the  record,  and  need 
not  be  embodied  in  the  bill  or  statement,  4,  46. 

Written  exceptions  to  become  a  part  of  the  record  when  duly  filed, 
and  need  not,  therefore,  be  embodied  in  the  bill  or  state- 
ment, 4,  46. 

written  exceptions  to  the  refusal  to  make  requested  findings  be- 
come a  part  of  the  record  when  duly  filed,  and  need  not  be 


INDEX.  281 

[Reference!  are  to  Sections.] 

Findings  of  Fact  and  Conclusions  of  Law— Continued. 

embodied  in  the  bill  or  statement,  46. 

See,  also,  Referees;  Commissioners;  Exceptions;  Bill  of  Excep- 
tions; Statement  of  Facts. 

Form  of  the  Bill  or  Statement. 

should  affirmatively  show  that  the  facts,  matters  and  proceedings 

embodied  therein  actually  occurred  in  the  cause,  42. 
it  may  be  in  the  form  of  a  narrative,  42. 
the  narrative  form  is  commended,  42. 
it   is   usually,   however,   a   longhand   reproduction   of   shorthand 

notes,  42. 
in  the  absence  of  objection  in  the  lower  court,  it  may  be  abridged 

for  the  purpose  of  avoiding  repetition,  42. 
when  proposed  amendments  are  agreed  to  or  allowed,  the  whole 

should  be  reduced  to  a  single  bill  or  statement,  42. 
in  the  absence  of  objections  in  the  lower  court,  combined  bill 

or  statement  has  been  sustained,  42. 
must  be  printed  or  typewritten,  42. 
when  typewritten  none  other  than  a  black  record  ribbon  copy 

shall  be  used,  42. 

must  be  on  paper  of  good  quality  of  the  size  of  legal  cap,  42. 
must  be  free  from  interlineations  and  erasures,  42. 
must  be  duly  paged,  42. 

must  be  prefixed  with  an  alphabetical  index  to  its  contents  speci- 
fying the  page  of  each  separate  paper,  order  or  proceeding, 

and  the  testimony  of  each  witness,  42. 
must  have  at  least  one  blank  fly-leaf,  42«. 
when  consisting  of  more  than  fifty  leaves  must  be  bound  under 

direction  of  the  clerk  of  the  supreme  court,  42. 
may  be  indexed  by  the  clerk  of  the  supreme  court,  42. 
abstract  of  evidence,  exhibits,  etc.,  cannot  be  considered,  44. 
See,  also,  Preparation  of  the  Bill  or  Statement. 


I 

Index. 

bill  or  statement  must  be  prefixed  with  an  alphabetical  index 
specifying  the  page  of  each  separate  paper,  order  or  proceed- 
ing, and  the  testimony  of  each  witness,  42. 

may  be  prepared  by  clerk  of  the  supreme  court,  42. 

abstract  of  evidence,  exhibits,  etc.,  cannot  be  considered,  44. 
See,  also,  Form  of  the  Bill  or  Statement;  Preparation  of  the 
Bill  or  Statement. 


282  INDEX. 

[References  are  to  Sections. J 

Instructions. 

exceptions  to,  how  taken,  5. 

exceptions  to  refusal  of  requested  instructions,  how  taken,  9. 

when  exceptions  to  instructions  may  be  taken,  5,  31. 

when  exceptions  may  be  taken  to  refusal  of  requested  instruc- 
tions, 5,  31. 

instructions  made  wholly  in  writing  become  a  part  of  the  record 
when  filed,  and  should  not,  therefore,  be  embodied  in  the  bill 
or  statement,  46. 

formerly  instructions  made  wholly  in  writing  did  not  become  a 
part  of  the  record  when  filed,  46. 

instructions  requested  in  writing  to  be  given  as  part  of  a  charge 
become  a  part  of  the  record  when  filed,  and  should  not,  there- 
fore, be  embodied  in  the  bill  or  statement,  46. 

oral  charges  should  be  embodied  in  the  bill  or  statement,  44. 
See,  also,  Charges  to  a  Jury;  Preparation  of  the  Bill  or  State- 
ment. 

Interlineations. 

bill  or  statement  must  be  free  from  interlineations,  42. 

See,  also,  Form  of  the  Bill  or  Statement;    Preparation  of  th« 
Bill  or  Statement. 


J 

Journal  Entries. 

exceptions  to  not  necessary  when  ruling  or  decision  is  embodied 

in,  3. 

journal  entries  are  a  part  of  the  record,  and  should  not,  there- 
fore, be  embodied  in  the  bill  or  statement,  46. 
when  and  when  not  controlling  over  formal  order,  66. 
See,  also,  Preparation  of  the  Bill  or  Statement. 

Judge. 

rulings  or  decisions  of,  not  already  a  part  of  the  record,  must  be 
embodied  in  the  bill  or  statement,  9. 

judge  who  may  make  the  order  extending  the  time  for  the  filing 
and  service  of  the  bill  or  statement,  and,  therefore,  the  judge 
to  whom  the  application  may  be  made,  64. 

judge  to  whom  the  application  for  the  settlement  and  certifica- 
tion of  the  bill  or  statement  may  be  made,  and,  therefore,  the 
judge  whom  the  notice  of  such  application  may  designate,  100. 

the  judge  who  may  certify  the  bill  or  statement,  109. 

when  the  judge  may  correct  or  supplement  his  certificate,  114. 


INDEX.  283 

[References  are  to  Sections.] 
Judge — Continued. 

what  is  meant  by  correcting  or  supplementing  the  certificate,  115. 
See,  also,  Certification  of  the  Bill  or  Statement;  Filing  of  the 
Bill  or  Statement;  Findings  of  Fact  and  Conclusions  of  Law; 
Exceptions. 

Judgments. 

exception   is  not  necessary  when   ruling  or   decision   is   embodied 

in  a  written  judgment,  3. 

exception   to  formal  judgment  is  neither  necessary  nor  proper,  8. 
only  one  bill  or  statement  embodying  matters  occurring  prior  to 

final  judgment  can  be  proposed  for  settlement  and  certification 

after  rendition  thereof,  9,  110. 
meaning   of  the  phrase   "final  judgment  in   the   cause"   as  used 

with  reference  to  the  number  of  bills  or  statements  which 

may  be  certified  after  the  rendition  thereof,  and  the  meaning 

of  the  statute  considered,  110,  111. 
judgments  become  a  part  of  the  record  when  filed,  and  should 

not.  therefore,  be  embodied  in  the  bill  or  statement,  46. 


L 

Legal  Effect  of  Duly  Certified  Bill  or  Statement 

legal  effect  of  duly  certified  bill  or  statement  defined  and  con- 
sidered, 121. 

when  duly  certified  the  bill  or  statement  becomes  an  inseparable 
part  of  the  record,  122. 

when  duly  certified  the  bill  or  statement  becomes  an  absolute  ver- 
ity, 123. 

Legal  Effect  of  Failure  to  File  and  Serve  Proposed  Amendments, 
failure  to  file  and   serve  proposed  amendments  within  th«  time 
prescribed  by  statute  constitutes  a  settlement  of  the  bill  or 
statement  by  the  implied  agreement  of  the  parties,  72,  89. 

Legal  Effect  of  Acceptance  of  Proposed  Amendments. 

acceptance  of  proposed  amendments  constitutes  a  settlement  of 
the  bill  or  statement  by  the  express  agreement  of  the 
parties,  87,  89. 


284  INDEX. 

[Referencei  art  to  Sections.] 


M 
Mandamus. 

when  the  remedy  may  be  resorted  to,  118. 

Motions. 

written  motions  become  a  part   of  the  record  when  filed,   and 
should  not,  therefore,  be  embodied  in  the  bill  or  statement,  46. 

Motions  Made  to  the  Supreme  Court  in  the  First  Instance,  and  Based 
upon  Various  Grounds,  to  Strike  the  Bill  or  Statement  from 
the  Cause,  120. 

correctness   of   the   practice    considered  with   reference   to    duly 
certified  bills   or   statements,    120. 


N 

Notices. 

notices  in  writing  become  a  part  of  the  record  when  filed,  and 
should  not,  therefore,  be  embodied  in  the  bill  or  statement, 
46. 

See  Notice  of  Filing  the  Bill  or  Statement;  Notice  of  Applica- 
tion to  Extend  Time  for  Filing  and  Serving  the  Bill  or 
Statement;  Notice  of  Application  to  Settle  and  Certify  the 
Bill  or  Statement;  Certification  of  the  Bill  or  Statement. 

Notice  of  Filing  the  Bill  or  Statement. 

notice  of  the  filing  need  not  be  serred  on  the  "adverse  party," 
54,  56,  57,  58. 

notice  of  the  filing  need  only  be  served  on  "any  other  party 
who  has  appeared  in  the  cause,"  54,  56,  57,  58. 

meaning  of  the  clause  "any  other  party  who  has  appeared  in 
the  cause,"  56. 

such  party  distinguished  from  "prevailing  party"  and  from  "ad- 
verse party,"  56. 

reason  for  the  rule  requiring  notice  of  the  filing  of  the  bill 
or  statement  to  be  served  on  "any  other  party  who  has  ap- 
peared in  the  cause,"  58. 

Notice  of  Application  to  Extend  the  Time  for  Filing  and  Serving 

the  Bill  or  Statement. 

need  not  be  served  on  "any  other  party  who  has  appeared  in  the 
cause,"  58,  61. 


INDEX.  285 

[References  are  to  Section!.] 

Notice  of  Application  to  Extend  the  Time  for  Filing  and  Serving  the 

Bill  or  Statement — Continued, 
reason    for   the    rule   that   notice   of   application   to    extend    the 

time  for  the  filing  and  service  of  the  bill  or  statement  need 

not  be  served  on  "any  other  party  who  has  appeared  in  the 

cause,"  58. 
notice  of  application  for  extension  should  specify  the  time  and 

place  of  the  hearing,  and  the  judge  to  whom  the  application 

•will  be  made,  61. 
when   proper  notice  of  application  for  extension  is  once  given, 

new  notice  is  not  necessary  when  application  is  not  heard  at 

appointed  time,  and  party  giving  notice  is  not  at  fault,  61. 
notice  need  only  give  reasonable  notice  of  the  hearing,  61. 
notice  that  the  application  would  be  heard  at  3  o'clock  in  the 

afternoon  of  the  same  day  on  which  the  notice  was  served 

has   been   held   to   be    sufficient   notice,   61. 

place  where  application  for  extension  of  time  may  be  heard,  63. 
the  judge  who  may  make  the  order  extending  the  time,  and  to 

whom,  therefore,  the  application  may  be  made,  64. 
place  where  the  order  extending  the  time  may  be  made,  65. 
notice  need  only  be  served  on  the  "adverse  party,"  58,  61. 
methods  of  serving  the  notice,  57,  61. 
proof  of  service  of  the  notice,  59,  61. 

See,  also,  Filing  of  the  Bill  or  Statement;  Service  of  the  Bill 

or  Statement;   Proof;   Any  Other  Party  Who  has  Appeared 

in  the  Cause;  Adverse  Party. 

Notice  of  Application  to  Settle  and  Certify  the  Bill  or  Statement, 
when  notice  is  not  required,  72,  87,  92. 
when  netice  is  required,  93. 
when  notice  may  be  waived,  93. 
when   defective   notice   is  waived,   101. 
when  notice  may  be   given,  94. 

practice  of  serving  notice  at  time  of  service  of  bill  or  state- 
ment   not    sanctioned,    94. 
who  may  give  the  notice,  95. 
upon  whom  the  notice  must  be  served,  96. 
methods  of  serving  the  notice,  97. 
proof  of  service  of  the  notice,  98. 
what  the  notice  must  contain,  99. 
the  judge  to  whom  the  application  may  be  made;  and  therefore 

the  judge  whom  the  notice  may  designate,  100. 
what  notice  should  be  given  of  the  hearing,  101. 
method  of  computing  the  time  which  the  notice  must  give,  102. 


286  INDEX. 

[Reference!  are  to  Section!.] 

Notice  of  Application  to  Settle  and  Certify  the  Bill  or  Statement — 

Continued. 

how  the  time  of  the  hearing  may  be  postponed,  103. 
the   place   where   the    hearing   may   be   held,   and   therefore   the 

place  which  the  notice  may  designate,  104. 
how  the  place  of  the  hearing  may  be  changed,  105. 
when  a  new  notice  must  be  given,  106. 


0 

Orders. 

when  and  when  not  controlling  over  journal  entries,  66. 

orders  embodied  in  a  written  judgment,  or  journal  entry,  together 
with  all  exceptions,  if  any,  taken  to  any  thereof,  are  a  part 
of  the  record,  and  should  not,  therefore,  be  embodied  in 
the  bill  or  statement,  46. 

exceptions  are  not  necessary  when  rulings  or  decisions  are  em- 
bodied in  written  orders,  3. 

exceptions  to  appealable  orders  are  neither  necessary  nor  proper, 
8. 

time  for  the  filing  and  service  of  the  bill  or  statement  may 
be  extended  by  order  of  the  court  or  judge,  61. 

when  so  extended  it  must  be  for  good  cause  shown,  and  on  such 
terms  as  may  be  just,  made  on  notice  to  the  adverse  party, 
61. 

when  proper  notice  of  application  for  extension  is  once  given, 
order  extending  the  time  may  be  made  without  a  new  notice 
when  the  application  is  not  heard  at  the  appointed  time, 
and  party  giving  notice  is  not  at  fault,  61. 

order  extending  the  time  may  be  made  upon  the  giving  of  only 
a  reasonable  notice,  61. 

order  may  be  made  pursuant  to  notice  that  the  application  to 
extend  the  time  would  be  heard  at  3  o'clock  in  the  after- 
noon of  the  same  day  on  which  the  notice  was  served,  61. 

order  granting  extension  of  time  will  not  be  disturbed  unless 
it  is  based  upon  an  erroneous  application  of  rules  of  law,  61. 

order  refusing  to  grant  an  extension  of  time  will  be  reversed 
only  for  abuse  of  discretion,  or  erroneous  application  of 
rules  of  law,  61. 

order  must  be  made  and  entered  before  the  expiration  of  the 
time  limited  thereby  for  the  filing  and.  service  of  the  bill 
or  statement,  61. 

time  within  which  the  bill  or  statement  must  be  filed  and  served 
when  an  extension  has  been  granted,  62. 


INDEX.  287 

[References  are  to  Sections.] 

Orders — Continued. 

when  an  appeal  is  taken  from  two  or  more  orders,  the  time 
limited  for  the  filing  and  service  of  the  bill  or  statement  i» 
applied  to  each  of  the  orders,  62. 

th«  judge  who  may  make  the  order  extending  the  time,  and  to 
whom,  therefore,  the  application  may  be  made,  64. 

place  where  the  order  extending  the  time  may  be  made,  65. 

the  beginning  of  the  time  within  which  the  bill  or  statement 
must  be  filed  and  served  may  be  postponed  by  an  applica- 
tion seasonably  made  to  set  aside  an  order  or  the  final 
judgment  upon  the  ground  that  it  has  been  irregularly 
entered,  67. 

the  beginning  of  such  time  may  be  also  postponed  by  the  re- 
versal of  a  favorable  ruling  which  prevented  an  appeal  from 
an  unfavorable  one,  67. 

service  of  orders,  57. 

proof  of  service  of  orders,  57,  59,  61. 

order  extending  the  time  for  the  filing  and  service  of  the  bill 
or  statement  need  not  be  served  on  "any  other  party  who  has 
appeared  in  the  cause,"  58,  61. 

reason  for  the  rule  that  the  order  extending  the  time  for  the 
filing  and  service  of  the  bill  or  statement  need  not  be 
served  on  "any  other  party  who  has  appeared  in  the  cause," 
58. 

the  order  extending  the  time  need  only  be  served  on  the  "ad- 
verse party,"  58,  61. 

meaning  of  the  clause  "any  other  party  who  has  appeared  in 
the  eause,"  56. 

such  party  distinguished  from  "prevailing  party"  and  from  "ad- 
verse party,"  56. 

See,  also,  Notice  of  Application  to  Extend  the  Time  for  Filing 
and  Serving  the  Bill  or  Statement;  Any  Other  Party  Who 
has  Appeared  in  the  Cause;  Adverse  Party;  Proof;  Service 
of  the  Bill  or  Statement;  Filing  of  the  Bill  or  Statement. 


P 

Papers. 

not  already  a  part  of  the  record  must  be  embodied  in  the  bill 
or  statement  when  material,  9,  44. 

Party  Entitled  to  a  Bill  or  Statement. 

any  party,  except  the  state  in  criminal  actions  and  in  actions 
for  divorce,  is  entitled,  in  a  proper  case,  to  a  bill  of  ex- 
ceptions or  statement  of  facts,  43. 


288  INDEX. 

[References  are  to  Sections.] 

Party  Entitled  to  a  Bill  or  Statement — Continued. 

respondent  is  therefore  entitled  to  a  bill  or  statement  in  a 
proper  case,  43. 

Place. 

place  where  application  for  extension  of  time  for  the  filing  and 
service  of  the  bill  or  statement  may  be  heard;  and  there- 
fore the  place  which  the  notice  of  the  application  may 
designate,  63. 

place  where  the  order  extending  the  time  for  the  filing  and 
service  of  the  bill  or  statement  may  be  made,  65. 

the  place  where  the  hearing  of  the  application  to  settle  and 
certify  the  bill  or  statement  may  be  held,  and  therefore  the 
place  which  the  notice  of  the  application  may  designate,  104. 

how  the  place  of  the  hearing  of  the  application  to  settle  and 
certify  the  bill  or  statement  may  be  changed,  105. 

the  place  where  the   bill  or  statement  may  be  certified,   108. 

written  admission  of  service  need  not  show  the  place  of  ser- 
vice, 59. 

Pleadings. 

pleadings  become  a  part  of  the  record  when  filed,  and  should 
not,  therefore,  be  embodied  in  the  bill  or  statement,  46. 

Preparation  of  the  Bill  or  Statement. 

body  of  the  bill  or  statement  must  show  that  all  matters  em- 
bodied therein  actually  occurred,  42. 

bill  or  statement  may  be  in  the  form  of  a  narrative,  42. 

narrative  form  is  commended,  42. 

all  matters  are,  however,  usually  taken  down  in  shorthand  notes 
as  they  occur,  and  are  thereafter  reduced  to  longhand  type- 
written notes,  42. 

when  amendments  are  proposed  all  matters  should  be  embodied  in 
a  single  bill  or  statement,  42. 

the  bill  or  statement  must  be  printed  or  typewritten,  42. 

when  typewritten  none  other  than  a  black  record  ribbon  copy 
shall  be  used,  42. 

must  be  on  paper  of  good  quality  of  the  size  of  legal  cap,  42. 

must  be  free  from  interlineations  and  erasures,  42. 

must  be  duly  paged,  42. 

must  be  prefixed  with  an  alphabetical  index  to  its  contents 
specifying  the  page  of  each  separate  paper,  order  or  proceed- 
ing, and  of  the  testimony  of  each  witness,  42. 

must  have  at  least  one  blank  fly-leaf,  42. 


INDEX.  289 

[References  are  to  Sections.] 

Preparation  of  the  BUI  or  Statement— Continued. 

when  consisting  of  more  than  fifty  leaves  must  be  bound  under 

the  direction  of  the  clerk  of  the  supreme  court,  42. 
When   exhibits  are  not  indexed  and  classified  they  will  not  be 

considered  when  numerous,  42. 

should  be  indexed  before  it  is  presented  to  the  supreme  court,  42. 
clerk   of   the  supreme   court  may,  however,   prepare  and  attach 

the  index,  42. 

abstracts  of  evidence  are  not  permitted,  42. 
must  be  substantially  full  and  complete,  42. 
if  bad  faith  or  gross  negligence  is  exercised  in  the  preparation, 

the  bill  or  statement  may  be  stricken,  42. 

court   or  judge  may  order  it  corrected  until  it  becomes   a  sub- 
stantial  bill    or   statement,   42. 

if   order   is   disregarded,   bill  or  statement   may  be   stricken,   42. 
writ  of  mandate  will  not  issue  to  compel  certification  until  all 

reasonable  demands  of  the  court  or  judge  shall  have  been 

complied  with,  42,  118. 
above  rule  does  not  conflict  with  statutory  remedy  of  proposed 

amendments,  42. 

motion  to  make  substantial  should  point  out  defects,  42. 
•hould    embody   only    material    matters'    occurring    in    the    cause 

and   which  are   not   already   a   part   of   the    record,   44. 
should   not   embody   immaterial   matters,   nor  matters   which   are 

already  a  part  of   the   record,   nor   matters   which   did  not 

occur  in  the  cause,  46. 
in  civil  actions  and  proceedings,  costs  of  the  preparation  of  the 

bill    or    statement    will    be    allowed    to    a    prevailing    party 

who  is  without  fault,  47. 
in    criminal    actions,    costs    of    the    preparation    of    the    bill    or 

statement  will  be  allowed  to  a  successful  defendant,  47. 
the  costs  cannot  exceed   ten   cents  per  folio,  47. 
costs  are  otherwise  within  the  discretion  of  the  court,  47. 
county  cannot  be  charged  with  costs  of  preparation  of  bill  or 

statement  in  civil  causes  to  which  it  is  not  a  party,  47. 
whether   county  can   be  charged   with   costs   of  preparation  of  the 

bill    or    statement    in    criminal   actions,    on    appeal    in    forma 

pauperis   is    doubtful,    47. 

cost  bill  should  show  number  of  folios  by  actual  count,  47. 
where  no    actual   count  is   made,   the   clerk's   estimate   made  by 

counting  a  number  of  pages  and  taking  an  average  of  these 

as  an  average  of  the  whole  will  be  preferred  to  a  party's 

estimate  made  by  claiming  a  specified  number  of  folios  per 
19 


290  INDEX. 

[References  are  to  Sections.] 

Preparation  of  the  Bill  or  Statement — Continued. 

page  as  the   average  because   he  had  found  that  such  was 
the   general   average   of   similar   work,    47. 

the  bill  or  statement  should  embody  only  material  matters  occur- 
ring in  the  cause  and  not  already  a  part  of  the  record,  44. 

the  bill  of  exceptions  properly  embodies  only  oral  rulings,  to- 
gether with  such  facts,  matters  and  proceedings  as  are  ma- 
terial to  a  consideration  thereof  on  appeal,  and  not  already 
a  part  of  the  record,  40. 

the  statement  of  facts  must  embody  at  least  facts,  matters  and 
proceedings  which  are  not  already  a  part  of  the  record,  and 
which  directly  relate  to  a  ruling  or  rulings  which  are  already 
a  part  of  the  record,  and  may,  and  usually  does,  embody,  in 
addition  to  this,  all  that  a  bill  of  exceptions  properly  embodies, 
40. 

Hlustratioiis  of  what  the  bill  or  statement  should  contain: 

oral  stipulations,  44,  46. 

records  in  other  causes  when  material,  44. 

all  facts  showing  misconduct  of  counsel,  44. 

oral  admissions  where  judgment  is  rendered  on  pleadings,  44. 

affidavits,  44. 

oral  instructions,  44. 

depositions  and  other  written  evidence  on  file,  except  affidavits 
which  have  been  made  parts  of  motions,  and  excepting  evi- 
dence which  has  been  returned  into  court  by  referees  or  com- 
missioners with  their  reports,  44,  45. 

affidavits  which  have  been  made  parts  of  written  motions,  and  evi- 
dence returned  into  court  by  referees  or  commissioners  with 
their  reports  become,  when  filed,  a  part  of  the  record,  and 
need  not,  therefore,  be  embodied  in  the  bill  or  statement,  44. 

the  testimony  and  other  evidence  must,  however,  be  returned  into 
court  with  their  reports  by  the  referees  or  commissioners;  for 
if  transcribed  and  filed  by  one  of  the  parties,  it  is  not  a  part 
of  the  record,  and  in  such  a  case  must  be  embodied  in  the  bill 
or  statement,  44. 

all  material  oral  evidence,  44. 

all  facts  showing  demonstrations  of  approval  calculated  to  in- 
fluence the  jury,  44. 

improper  argument  of  counsel,  44. 

all  facts  connected  with  the  entry  of  a  judgment  in  excess  of  the 
verdict  when  material,  44. 

opening  statement  of  counsel  when  material,  44. 


INDEX.  291 

[References  are  to  Section!.] 

Preparation  of  the  Bill  or  Statement— Continued. 

all  nonrecord  matters  which  were  considered  by  the  court  on  ren- 
dering judgment  when  material,  44. 

record  evidence  which  has  been  excluded,  44. 

rules  of  practice  of  superior  courts  when  material,  44. 

in  supplemental  proceedings  the  issuance  of  execution  when  the 
fact  is  material  and  does  not  otherwise  appear  of  record,  44. 

when  motion  for  default  is  refused,  the  fact  that  there  was  no 
opposition  thereto  when  material,  44. 

the  fact  that  no  application  was  made  for  appointment  of  guard- 
ian ad  litem  when  the  appointment  is  questioned,  and  such 
fact  is  material,  44. 

the  nonrecord  showing  made  on  application  for  provision  for  the 
support  of  children  which  has  been  refused,  44. 

letters  and  their  contents  when  material,  44. 

all  material  nonrecord  matters  relating  to  the  allowance  of  a  cost 
bill  which  is  objected  to,  44. 

the  evidence  when  sufficiency  of  complaint  is  challenged  in  the 
supreme  court,  and  evidence  was  introduced  in  the  lower  court, 
44. 

the  nonrecord  showing  made  on  motion  for  new  trial  which  has 
been  overruled,  44. 

Illustrations  of  what  must  not  be  embodied  in  the  bill  or  statement: 
immaterial  matters,  and  matters  which  become  a  part  of  the  record 

when  filed,  as  well  as  matters  which  did  not  occur  in  the  cause, 

46. 

the  summons,  46. 
pleadings,  46. 
reports  of  referees  or  commissioners  with  the  testimony  and  other 

evidence  returned  into  court  therewith  and  filed  by  the  referees 

or  commissioners,  46. 
the  testimony  and  other  evidence  must  be  returned  into  court  by  the 

referees  or  commissioners;  for  if  transcribed  and  filed  by  one 

of  the  parties,  it  is  not  a  part  of  the  record,  and  in  such  a  case 

must  be  embodied  in  the  bill  or  statement,  46. 
findings  of  fact  and  conclusions  of  law,  46. 
all  charges  to  a  jury  made  wholly  in  writing,  46. 
all  instructions  requested  in  writing  to  be  given  as  part  of  a  charge, 

46. 

all  verdicts,  general  or  special,  46. 
all  rulings  or  decisions  embodied  in  a  written  judgment,  order  or 

journal  entry  in  the  cause,  together  with  all  exceptions,  if  any, 

taken  to  any  thereof.  46. 


292  INDEX. 

[References  are  to  Sections.] 

Preparation  of  the  Bill  or  Statement — Continued. 

on  appeal  in  consolidated  cases,  facts,  matters  and  proceedings  re- 
lating to  the  cause  with  which  the  appeal  is  not  concerned,  46. 

all  facts,  matters  and  proceedings  which  did  not  occur  in  the 
cause,  46. 

exceptions  to  the  report  of  a  referee  or  commissioner,  or  to  find- 
ings of  fact  or  conclusions  of  law  which  are  duly  noted  in  the 
margin  or  at  the  foot  of  the  report  or  decision,  4,  46. 

exceptions  which  are  noted  in  the  margin  or  at  the  foot  of  the 
refusal  to  make  requested  findings  and  conclusions,  46. 

written  exceptions  to  the  report  of  a  referee  or  commissioner,  or 
to  findings  of  fact  or  conclusions  of  law,  4,  46. 

written  exceptions  to  the  refusal  to  make  requested  findings  of  fact 
and  conclusions  of  law,  46. 

all  files  of  the  superior  court  in  the  cause,  including  reports  of 
referees  or  commissioners  with  the  testimony  and  other  evi- 
dence returned  into  court  therewith  by  the  referees  or  commis- 
sioners, and  affidavits  which  have  been  made  parts  of  motions, 
but  excluding  all  other  written  evidence  on  file,  46. 

all  files  relating  to  appellate  proceedings,  46. 

transcripts  which  are  required  to  be  certified  to  a  superior  court 
on  the  removal  of  a  cause  thereto  from  an  inferior  tribunal,  46. 

requested  findings  and  conclusions  which  have  been  refused,  46. 

proofs  of  service,  46. 

written  stipulations,  46. 

written  notices,  46. 

written  motions,  46. 

affidavits  when  made  parts  of  written  motions,  46. 

Depositions  and  other  written  evidence  on  file: 

depositions  and  other  written  evidence  on  file  should  be  properly 
marked  for  identification,  45. 

should  be  appropriately  referred  to,  45. 

simple  statement  that  the  exhibit,  giving  the  mark  of  identifica- 
tion, was  offered  and  received  in  evidence,  is  an  appropriate 
reference,  and  that  is  all  that  is  necessary  to  make  the  depo- 
sition or  exhibit  a  part  of  the  bill  or  statement,  45. 

depositions  and  other  written  evidence  on  file,  except  affidavits 
which  hare  been  made  parts  of  written  motions,  and  except- 
ing evidence  which  has  been  returned  into  court  by  referees 
or  commissioners,  are  not  already  a  part  of  the  record,  and 
should  therefore  be  embodied  in  the  bill  or  statement,  45. 

affidavits  which  have  been  made  parts  of  motions,  and  evidence 
returned  into  court  by  referees  or  commissioners  with  their 


INDEX.  293 

[References  are  to  Sections.] 

Preparation  of  the  Bill  or  Statement — Continued. 

reports  become,  when  filed,  a  part  of  the  record;  and  need 
not,  therefore,  be  embodied  in  the  bill  or  statement,  44. 

the  testimony  and  other  evidence  must,  however,  be  returned  into 
court  with  their  reports  by  the  referees  or  commissioners;  for 
if  transcribed  and  filed  by  one  of  the  parties,  it  is  not  a  part 
of  the  record,  and  in  such  a  case  must  be  embodied  in  the 
bill  or  statement,  44. 

attachment  to  the  bill  or  statement  is  not  essential,  though 
advisable,  45. 

copies  thereof  need  not  be  served  with  copy  of  the  bill  or  state- 
ment, 45. 

originals  or  copies  may  be  used,  45. 

may  be  attached  by  counsel  before  certification,  45. 

may  be  attached  by  the  clerk,  45. 

need  not  be  attached  unless  judge  directs,  45. 

it  seems  that  they  may  be  attached  to  the  transcript,  45. 

but  they  cannot  be  embodied  in  the  transcript,  45. 

copies  thereof  may  be  bodily  inserted  in  the  bill  or  statement,  45. 

should  be  indexed  and  classified,  42. 

Party  entitled  to  a  bill  or  statement: 

any  party,  except  the  state  in  criminal  actions  and  in  actions  for 

divorce,  is  entitled,  in  a  proper  case,  to  a  bill  of  exceptions 

or  statement  of  facts,  43. 
respondent  is  therefore  entitled  to  a  bill  or  statement  in  a  proper 

case,  43. 
exceptions  which  are  not  already  a  part  of  the  record  should  be 

embodied  in  the  bill  or  statement     See  Exceptions. 

Prevailing  Party, 
definition  of,  56. 

distinguished  from  "adverse  party,"  58. 

distinguished  from  "any  other  party  who  has  appeared  in  the 
cause,"  56. 

Proceedings. 

proceedings  not  already  a  part  of  the  record  must  be  embodied  in 
the  bill  or  statement,  9,  44. 

Prohibition. 

when  remedy  of  may  be  resorted  to,  119. 


294  INDEX. 

[Reference*  are  to  Sections.] 

Proof. 

proof  of  service  of  papers  and  documents  become  a  part  of  the 
record  when  filed,  and  should  not,  therefore,  be  embodied  in 
the  bill  or  statement,  46. 

proof  of  filing  bill  or  statement,  53. 

proof  of  service  of  bill  or  statement,  59. 

proof  of  service  of  notice  of  application  to  extend  the  time  for 
the  filing  and  service  of  the  bill  or  statement,  61. 

proof  of  filing  proposed  amendments,  74. 

proof  of  service   of  proposed  amendments,  79. 

proof  of  acceptance  of  proposed  amendments,  86. 

proof  of  service  of  notice  of  application  to  settle  and  certify  the 
bill  or  statement,  98. 

proof  that  no  amendments  have  been  proposed,  72. 

service  may  be  proved  by  written  admission  of  attorney,  59. 

written  admission  of  service  need  not  show  place  of  service,  59. 

admission  of  "due  service  and  receipt  of  a  copy  thereof"  by  an 
attorney  is  sufficient,  59. 

indorsement  that  a  copy  was  "received  and  service  of  same  ac- 
cepted" is  sufficient,  59. 

service  may  be  proved  by  written  admission  of  a  party  who  has 
appeared,  for  the  supreme  court  will,  after  appearance,  take 
judicial  notice  of  his  signature,  59. 

but  service  cannot  be  proved  by  the  written  admission  of  a  party 
who  has  not  appeared,  59. 

service  may  be  proved  by  affidavit  of  attorney,  59. 

affidavit  of  service  which  merely  recites  that  the  paper  served 
was  served  upon  the  party  "by  delivering  and  leaving  at  the 
office  of  (party's  attorney)  a  true  and  correct  copy  of  (the 
paper  served)"  is  insufficient,  59. 

service  may  be  proved  by  affidavit  of  officer,  or  other  disinterested 
person,  making  the  service,  59. 

itatutory  provision  requiring  proof  of  service  of  the  bill  or  state- 
ment and  that  no  amendments  have  been  proposed  thereto  to 
be  filed  before  certification  without  notice  is  intended  for 
the  benefit  of  the  court  or  judge,  and  is  not  jurisdictional,  72. 

statutory  provision  requiring  proof  of  the  service  of  the  bill  or 
statement  and  acceptance  of  proposed  amendments  to  be  filed 
before  certification  without  notice  is  intended  for  the  benefit 
of  the  court  or  judge,  and  is  not  jurisdictional,  87. 

Proposal  of  the  Bill  or  Statement, 
definition  of,  50. 
necessity  of  filing  and  serving  the  proposed  bill  or  statement,  51. 


INDEX.  295 

[References  are  to  Sections.] 

Proposal  of  the  Bill  or  Statement— Continued. 

precedence  which  must  be  observed  and  followed  in  the  filing  and 

service  of  the  bill  or  statement,  52. 
proof  of  the  filing,  53. 

kinds  of  service  which  are  provided  for  by  the  statute,  54. 
meaning  of  the  phrase  "adverse  party,"  55. 
meaning  of  the  clause  "any  other  party  who  has  appeared  in  the 

cause,"  56. 

various  methods  of  serving  the  proposed  bill  or  statement,  57. 
upon  whom  it  is  necessary  to  serve  the  proposed  bill  or  state- 
ment, 58. 

proof  of  service  of  the  proposed  bill  or  statement,  59.    . 
when  the  proposed  bill  or  statement  must  be  filed  and  served  in 

the  absence  of  any  extension  of  time,  60. 
methods  of  extending  the  time  for  filing  and  serving  the  proposed 

bill  or  statement,  61. 
time  within  which  the  proposed  bill  or  statement  must  be  filed 

and  served  when  an  extension  has  been  granted,  62. 
place   where   the   application   for   an   extension   of   time   may   be 

heard,  63. 
judge  who  may  make  the  order  extending  the  time,  and  to  whom, 

therefore,  the  application  may  be  made,  64. 
place  where  the  order  extending  the  time  may  be  made,  65. 
when  the  time  within  which  the  proposed  bill  or  statement  must 

be  filed  and  served  begins  to  run,  66. 

how  the  beginning   of  such   time  may  be  postponed,  67. 
method   of   computing  the  time  within   which   the   proposed  bill 

or  statement  must  be  filed  and  served,  68. 

Proposal  of  Amendments, 
definition  of,  69. 

character  of  the  proposed  amendments,  70. 
when  the  proposed  amendments  must  be  filed  and  served,  71. 
legal  effect  of  a  failure  to  file  and  serve  the  proposed  amendments 

within  the  time  prescribed  by  statute,  72. 
precedence   which   must   be   observed   and   followed   in   the   filing 

and  service  of  the  proposed  amendments,  73. 
proof  of  the  filing,  74. 

kind  of  service  provided  for  by  statute,  75. 

by  whom  the  proposed  amendments  may  be  filed  and  served,  76. 
various  methods  of  serving  the  proposed  amendments,  77. 
upon  whom  it  is  necessary  to  serve  the  proposed  amendments,  78. 
proof  of  service  of  the  proposed  amendments,  79. 


296  INDEX. 

[References  are  to  Sections.] 

Proposal  of  Amendments — Continued. 

whether  the  time  within  which  the  proposed  amendments  must 
be  filed  and  served  can  be  extended,  80. 

when  the  time  within  which  the  proposed  amendments  must  be 

filed  and  served  begins  to  run,  81. 

whether  the  beginning  of  such  time  may  be  postponed,  82. 

method  of  computing  the  time  within  which  the  proposed  amend- 
ments must  be  filed  and  served,  83. 

when  the  proposed  amendments  may  be  accepted,  84. 

methods  of  accepting  the  proposed  amendments,  85. 

methods  of  proving  the  acceptance  of  the  proposed  amendments, 
80. 

legal  effect  of  the  acceptance  of  the  proposed  amendments,  87. 
See,  also,  Amendments. 

Proposing  Party, 
definition  of,  78. 

Propriety  of  Considering  the  Settlement  of  the  Bill  or  Statement  in 
Connection  with  Its  Certification,  90. 


B 

Record. 

definition  of,  46. 

records  of  other  causes  used  as  evidence  must,  when  necessary  to 

the  consideration  of  a  cause  on  appeal,  be  embodied  in  the 

bill  or  statement,  44. 

Referees. 

exceptions  to  reports  of  necessary,  3. 

exceptions  to  findings  and  conclusions  in  reports  of  necessary,  3. 

how  exceptions   to  reports   and   findings   and   conclusions   of   are 

taken,  4. 
when  exceptions  to  reports  and  findings  and  conclusions  of  may 

be  taken,  4. 
rulings  or  decisions  of,  not  already  a  part  of  the  record,  must  be 

embodied  in  the  bill  or  statement,  9. 
reports  of  with  the  testimony  and  other  evidence  returned  into 

court  therewith  become  a  part  of  the  record  when  filed  by  the 

referees,  and  should  not,  therefore,  in  such  a  case,  be  embodied 

in  the  bill  or  statement,  46. 
the   testimony   and   other   evidence   must,   however,   be   returned 

into  court  with  his  report   by  the  referee,  for  if  it  is   tran- 


INDEX.  297 

[References  »re  to  Sections.] 

Referees — Continued. 

scribed  and  filed  by  one  of  the  parties,  it  is  not  a  part  of  the 
record,  and  must,  in  such  a  case,  be  embodied  in  the  bill  or 
statement,  46. 

Remedies. 

remedies  to  which  a  complaining  party  may  resort,  117-120. 

Reports  of  Referees  or  Commissioners. 

exceptions  to  reports  of  necessary,  3. 

exceptions  to  findings  and  conclusions  in  reports  of  necessary,  3. 

how  exceptions  to  reports  and  findings  and  conclusions  of  are 
taken,  4. 

when  exceptions  to  reports  and  findings  and  conclusions  of  may 
be  taken,  4. 

rulings  or  decisions  of,  not  already  a  part  of  the  record,  must  be 
embodied  in  the  bill  or  statement,  9. 

reports  of  with  the  testimony  and  other  evidence  returned  into 
court  therewith  become  a  part  of  the  record  when  filed  by  the 
referees  or  commissioners,  and  should  not,  therefore,  in  such  a 
case,  be  embodied  in  the  bill  or  statement,  46. 

the  testimony  and  other  evidence  must,  however,  be  returned  into 
court  with  his  report  by  the  referee  or  commissioner,  for  if  it 
is  transcribed  and  filed  by  one  of  the  parties,  it  is  not  a  part 
of  the  record,  and  must,  in  such  a  case,  be  embodied  in  the 
bill  or  statement,  46. 

Rules. 

rules  of  practice  of  the  superior  courts  when  necessary  to  a  review 
of  a  cause  on  appeal  should  be  embodied  in  the  bill  or  state- 
ment, 44. 

rules  of  the  supreme  court,  34-39. 

rules  of  the  supreme  court  govern  the  service  of  the  bill  or  state- 
ment, 57. 

rules  which  spring  into  existence  when  the  bill  or  statement  is 
certified,  the  nonobservance  of  which  will  extend  the  time 
prescribed  by  statute  for  the  service  and  filing  of  the  briefs 
on  appeal,  124. 

Rulings. 

rulings  not  already  a  part  of  the  record  must  be  embodied  in  the 
bill  or  statement,  9,  44. 

rulings  embodied  in  a  written  judgment,  order  or  journal  entry, 
together  with  all  exceptions,  if  any,  taken  to  any  thereof, 
become  a  part  of  the  record  when  filed,  and  should  not,  there- 
fore, be  embodied  in  the  bill  or  statement,  46. 


298  INDEX. 

[References  are  to  Sections.] 

8 

Service  of  the  Bill  or  Statement. 

service  of  the  bill  or  statement  is  not  provided  for  by  statute,  57. 

rules  of  the  supreme  court  govern  the  service  of  the  bill  or  state- 
ment, 57. 

requirement  that  the  bill  or  statement  must  be  filed  and  served 
is  mandatory,  51. 

service  must  follow  filing,  52. 

kinds  of  service  provided  for  by  statute,  54. 

actual  service  by  the  service  of  a  copy  of  the  original  bill  or 
statement  on  the  adverse  party,  54,  58. 

constructive  service  by  the  filing  of  the  original  bill  or  statement 
with  the  clerk  of  the  superior  court,  and  by  the  service  of 
written  notice  of  the  filing  thereof  on  any  other  party  who  has 
appeared  in  the  cause,  54,  58. 

illustrations  of  the  service,  58. 

"adverse  party"  distinguished  from -"prevailing  party,"  56. 

"adverse  party"  distinguished  from  "any  other  party  who  has  ap- 
peared in  the  cause,"  56. 

reason  for  the  rule  requiring  service  of  the  notice  of  the  filing  of 
the  bill  or  statement  on  "any  other  party  who  has  appeared 
in  the  cause,"  58. 

party  who  has  appeared  and  who  has  been  subsequently  dismissed 
need  not  be  served,  56. 

garnishee  need  not  be  served  when  appeal  relates  exclusively  to 
principal  action,  56. 

coparty  who  has  no  appealable  interest  nor  any  interest  which  will 
or  may  be  affected  by  an  appeal  need  not  be  served,  56. 

various  methods  of  serving  the  bill  or  statement,  57. 

service  may  be  made  by  mail  in  a  proper  case,  57. 

service  cannot  be  made  by  mail  when  parties  reside  in  the  same 
place,  57. 

service  may  be  made  upon  clerk  of  the  superior  court  when  it  cannot 
otherwise  be  made,  57. 

service  upon  a  lawyer's  clerk  is  insufficient  when  the  lawyer  himself 
is  present  in  the  office,  57. 

copy  served  need  not  have  copy  of  file-marks  placed  upon  the  orig- 
inal filed  with  the  clerk,  57. 

copy  served  need  not  have  attached  thereto  the  originals  or  copies 
of  depositions  and  other  written  evidence  on  file.  An  appro- 
priate reference  to  them  in  the  body  of  the  bill  or  statement 
is  all  that  is  required,  45. 


INDEX.  299 

[References  are  to  Sections.] 

Service  of  the  Bill  or  Statement — Continued. 

service  by  leaving  copy  of  bill  or  statement  at  attorney's  office 
with  one  who  is  not  a  clerk,  but  who  appeared  to  have  been 
such,  is  not  sufficient,  57. 

(service  may  be  proved  by  written  admission  of  attorney,  59. 

written  admission  of  service  need  not  show  place  of  service,  59. 

admission  of  "due  service  and  receipt  of  a  copy  thereof"  is  suf- 
ficient, 59. 

indorsement  that  a  copy  was  "received  and  service  of  same  ac- 
cepted" is  sufficient,  59. 

service  may  be  proved  by  written  admission  of  party  who  has 
appeared,  for  the  supreme  court  will,  after  appearance,  take 
judicial  notice  of  his  signature,  59. 

but  service  cannot  be  proved  by  written  admission  of  a  party  who 
has  not  appeared,  59. 

service  may  be  proved  by  affidavit  of  attorney,  59.  • 

affidavit  of  service  which  merely  recites  that  the  paper  served  was 
served  upon  the  party  "by  delivering  and  leaving  at  the  office 
of  (party's  attorney)  a  true  and  correct  copy  of  (the  paper 
served)"  is  insufficient,  59. 

service  may  be  proved  by  affidavit  of  officer,  or  other  disinterested 
person,  making  the  service,  59. 

•when  the  bill  or  statement  must  be  filed  and  served  in  the  absence 
of  any  extension  of  time,  60. 

methods  of  extending  the  time  for  the  filing  and  service,  61. 

time  for  filing  and  service  of  the  bill  or  statement  may  be  extended 
by  stipulation,  61. 

may  be  extended  by  order  of  the  court  or  judge,  61. 

when  extended  by  stipulation  order  is  not  necessary,  61. 

stipulation  must  be  in  writing  duly  filed,  or  must  otherwise  be  a 
matter  of  record,  61. 

when  time  is  not  extended  by  stipulation,  but  by  order  of  the  court 
or  judge,  it  must  be  for  good  cause  shown,  and  on  such  terms 
as  may  be  just,  made  on  notice  to  the  adverse  party,  61. 

the  notice  should  specify  the  time  and  place  of  the  hearing  of  the 
application,  and  the  judge  to  whom  the  application  will  be 
made,  61. 

when  proper  notice  is  once  given,  new  notice  is  unnecessary  where 
application  is  not  heard  at  the  appointed  time,  and  party  giv- 
ing notice  is  not  at  fault,  61. 

notice  need  only  give  reasonable  time,  61. 

notice  that  the  application  would  be  heard  at  3  o'clock  in  the  after- 
noon of  the  same  day  on  which  the  notice  was  served  has  been 
held  to  be  sufficient  notice,  61. 


300  INDEX. 

[Reference*  are  to  Section!.] 

Service  of  the  Bill  or  Statement — Continued. 

place  where  application  for  extension  of  time  may  be  heard,  63. 

the  judge  who  may  make  the  order  extending  the  time,  and  to 
whom,  therefore,  the  application  may  be  made,  64. 

place  where  the  order  extending  the  time  may  be  made,  65. 

notice  need  only  be  served  on  the  "adverse  party,"  58,  61. 

methods  of  serving  the  notice,  57,  61. 

proof  of  service  of  the  notice,  59,  61. 

notice  need  not  be  served  on  "any  other  party  who  has  appeared  in 
the  cause,"  58,  61. 

reason  for  the  rule  that  notice  of  application  to  extend  the  time 
for  the  filing  and  service  of  the  bill  or  statement  need  not  be 
served  on  "any  other  party  who  has  appeared  in  the  cause,"  58. 

order  granting  extension  of  time  will  not  be  disturbed  unless  it  is 
based  upon  an  erroneous  application  of  rules  of  law,  61. 

ofder  refusing  to  grant  an  extension  of  time  will  be  reversed  only 
for  abuse  of  discretion  or  erroneous  application  of  rules  of 
law,  61. 

order  must  be  made  and  entered  before  the  expiration  of  the  time 
limited  thereby  for  the  filing  and  service  of  the  bill  or  state- 
ment, 61. 

time  within  which  the  bill  or  statement  must  be  filed  and  served 
when  an  extension  has  been  granted,  62. 

when  an  appeal  is  taken  from  two  or  more  orders,  the  time  limited 
for  the  filing  and  service  of  the  bill  or  statement  is  applied  to 
each  of  the  orders,  62. 

place  where  application  for  extension  of  time  may  be  heard,  63. 

when  the  time  for  the  filing  and  service  begins  to  run,  66. 

how  the  beginning  of  such  time  may  be  postponed,  67. 

may  be  postponed  by  the  death  of  a  party  after  the  rendition  of  a 
final  judgment,  67. 

may  be  postponed  by  an  application  seasonably  made  to  set  aside 
an  order  or  the  final  judgment  upon  the  ground  that  it  has 
been  irregularly  entered,  67. 

may  be  postponed  by  a  motion  for  a  new  trial  which  has  been  sea- 
sonably made,  67. 

may  be  postponed  by  the  reversal  of  a  favorable  ruling  which  pre- 
vented an  appeal  from  an  unfavorable  one,  67. 

may  be  postponed  by  the  application  of  the  principle  of  estop- 
pel, 67. 

method  of  computing  the  time  within  which  the  bill  or  statement 
must  be  filed  and  served,  68. 

bill  or  statement  when  once  filed  cannot  be  withdrawn,  for  purpose 


INDEX.  301 

[Reference!  are  to  Sections.] 

Service  of  the  Bill  or  Statement — Continued. 

of  amendment  and  refiling  after  the  time  for  proposing  amend- 
ments has  expired,  even  though  the  time  limited  by  statute  for 
the  filing  and  service  of  the  bill  or  statement  itself  has  not 
expired,  71. 
is  not  the  correctness  of  this  rule  fairly  debatable?  120. 

Service  of  Proposed  Amendments. 

See  Amendments.     See,  also,  Proof. 

Settlement  of  the  Bill  or  Statement. 

settlement  of  the  bill  or  statement  denned,  89. 

is  a  ministerial  act,  89. 

settlement  distinguished  from  certification,  89. 

propriety  of  considering  the  settlement  in  connection  with  the  cer- 
tification, 90. 

failure  to  propose  amendments  within  the  time  prescribed  by  stat- 
ute constitutes  a  settlement  of  the  bill  or  statement  by  implied 
agreement  of  the  parties,-  72,  89. 

acceptance  of  proposed  amendments  constitutes  a  settlement  of  the 
bill  or  statement  by  express  agreement  of  the  parties,  87,  89. 

bill  or  statement  may  be  otherwise  settled  by  express  agreement  of 
the  parties,  89. 

bill  of  exceptions  may  be  settled  and  certified  either  before  or  after 
the  entry  of  the  judgment  or  order  appealed  from,  94,  107. 

statement  of  facts  can  only  be  settled  and  certified  after  the  entry 
of  the  judgment  or  order  appealed  from,  94,  107. 

statutory  provision  requiring  proof  of  service  of  the  bill  or  state- 
ment and  that  no  amendments  have  been  proposed  thereto  to 
be  filed  before  certification  without  notice  is  intended  for  the: 
benefit  of  the  court  or  judge,  and  is  not  jurisdictional,  72. 

statutory  provision  requiring  proof  of  the  service  of  the  bill  or 
statement  and  acceptance  of  proposed  amendments  to  be  filed 
before  certification  without  notice  is  intended  for  the  benefit 
of  the  court  or  judge,  and  is  not  jurisdictional,  87. 

when  notice  of  application  to  settle  and  certify  the  bill  or  state- 
ment is  not  required,  72,  87,  92. 

when  notice  is  required,  93. 

when  notice  may  be  waived,  93. 

when  defective  notice  is  waived,  101. 

when  notice  may  be  given,  94. 

practice  of  serving  notice  at  time  of  service  of  bill  or  statement  not 
sanctioned,  94. 

who  may  give  the  notice,  95. 


302  INDEX. 

[References  are  to  Sections.] 

Settlement  of  the  Bill  or  Statement — Continued. 

upon  whom  the  notice  must  be  served,  96. 

methods  of  serving  the  notice,  97. 

proof  of  service  of  the  notice,  98. 

what  the  notice  must  contain,  99. 

the  judge  to  whom  the  application  may  be  made,  and,  therefore, 
the  judge  whom  the  notice  may  designate,  100. 

what  notice  should  be  given  of  the  hearing,  101. 

method  of  computing  the  time  which  the  notice  must  give,  102. 

how  the  time  of  the  hearing  may  be  postponed,  103. 

the  place  where  the  hearing  may  be  held,  and  therefore  the  place 
which  the  notice  may  designate,  104. 

how  the  place  of  the  hearing  may  be  changed,  106. 

when  a  new  notice  must  be  given,  106. 

the  judge  by  whom  the  bill  or  statement  may  be  settled  and  certi- 
fied, 109. 

the  number  of  bills  of  exceptions  or  statements  of  facts  which  may 
be  certified,  110. 

meaning  of  the  phrase  "final  judgment  in  the  cause"  as  used  with 
reference  to  the  number  of  bills  or  statements  which  may  be 
settled  and  certified  after  the  rendition  thereof,  and  the  mean- 
ing of  the  statute  considered,  110,  111. 

whether  supplemental  bills  or  statements  are  permitted,  116. 

legal  effect  of  duly  settled  and  certified  bill  or  statement,  121. 
See,  also,  Proof;  Certification  of  the  Bill  or  Statement. 

Statement  of  Facts. 

definition  of,  40. 

distinguished  from  bill  of  exceptions,  40. 

proposal  of  defined,  50. 

unnecessary  when  findings  of  fact  are  full  and  complete  and  the 
question  to  be  determined  is  whether  the  judgment  or  decree  is 
supported  by  the  findings,  46. 

rule  is  otherwise  when  findings  are  not  full  and  complete,  46. 

whether  supplemental  bills  or  statements  are  permitted,  116. 

what  must  be  embodied  in.  See  Preparation  of  the  Bill  or  State- 
ment. 

form  of.  See  Preparation  of  the  Bill  or  Statement.  See,  also, 
Form  of  the  Bill  or  Statement. 

proposal  of.     See  Proposal  of  the  Bill  or  Statement. 

what  must  not  be  embodied  therein.  See  Preparation  of  the  Bill 
or  Statement. 

certification  of.     See  Certification  of  the  Bill  or  Statement. 

preparation  of.    See  Preparation  of  the  Bill  or  Statement. 


INDEX.  303 

[References  are  to  Sections.] 

Statement  of  Facts — Continued. 

extension  of  time  for  filing  and  serving.  See  Filing  of  the  Bill  or 
Statement.  See,  also,  Service  of  the  Bill  or  Statement. 

filing  of.     See  Filing  of  the  Bill  or  Statement. 

legal  effect  of  when  duly  certified.  See  Legal  Effect  of  Duly  Cer- 
tified Bill  or  Statement. 

motions  made  to  supreme  court  in  first  instance  to  strike.  See 
Motions  Made  to  the  Supreme  Court  in  the  First  Instance,  and 
Based  upon  Various  Grounds,  to  Strike  the  Bill  or  Statement 
from  the  Cause. 

notice  of  filing.  See  Notice  of  Filing  the  Bill  or  Statement.  See, 
also,  Filing  of  the  Bill  or  Statement. 

notice  of  application  to  extend  time  for  filing  and  serving.  See 
Notice  of  Application  to  Extend  Time  for  Filing  and  Serving 
the  Bill  or  Statement. 

notice  of  application  to  settle  and  certify.  See  Notice  of  Applica- 
tion to  Settle  and  Certify  the  Bill  or  Statement.  See,  also, 
Certification  of  the  Bill  or  Statement. 

settlement  of.     See  Settlement  of  the  Bill  or  Statement. 

service  of.     See  Service  of  the  Bill  or  Statement. 

who  is  entitled  to.  See  Party  Entitled  to  a  Bill  or  Statement. 
See,  also,  Preparation  of  the  Bill  or  Statement. 

place  where  motions  relating  to  may  be  heard.     See  Place. 

place  where  orders  relating  to  may  be  made.  See  Place.  See,  also, 
Orders. 

judge  to  whom  motions  relating  to  may  be  made.     See  Judge. 

judge  who  may  make  orders  relating  to.     See  Judge. 

proof  of  all  matters  relating  to.     See  Proof. 

by  whom  amendments  to  may  be  proposed.  See  Amendments.  See, 
also,  Any  Other  Party  Who  has  Appeared  in  the  Cause. 

legal  effect  of  failure  to  propose  amendments  to  within  the  time 
prescribed  by  statute.  See  Amendments. 

legal  effect  of  acceptance  of  proposed  amendments  to.  See  Amend- 
ments. 

statement  of  facts  is  an  indivisible  entity,  116. 

See,  generally,  Preparation  of  the  Bill  or  Statement;  Certifica- 
tion of  the  Bill  or  Statement;  Costs  of  the  Preparation  of  the 
Bill  or  Statement. 

Statutory  Provisions. 

statutory   provisions   which   relate   to   the  bill  or  statement,  2-33. 


304  INDEX. 

[References  are  to  Sections.] 

Stipulations. 

stipulations  in  writing  become  a  part  of  the  record  when  filed,  and 
should  not,  therefore,  be  embodied  in  the  bill  or  statement,  46. 

all  stipulations  must  be  in  writing  and  duly  filed,  or  must  other- 
wise be  made  a  matter  of  record,  61. 

stipulations  cannot  perform  the  office  of  the  bill  or  statement,  46. 

"any  other  party  who  has  appeared  in  the  cause"  is  not  a  party 
who  may  join  in  the  stipulation  extending  the  time  for  the 
filing  and  service  of  the  bill  or  statement,  58,  61. 

Summons. 

the  summons  becomes  a  part  of  the  record  when  filed,  and  should 
not,  therefore,  be  embodied  in  the  bill  or  statement,  46. 

Supplemental  Bills  or  Statements. 

whether  supplemental  bills  or  statements  are  permitted,  116. 

Supreme  Court. 

rules  of  the  supreme  court  relating  to  the  bill  or  statement,  34-39. 
supreme  court  takes  judicial  notice  of  the  signature  of  a   party 

who  has  appeared,  but  does  not  notice  judicially  the  signature 

of  a  party  who  has  not  appeared,  59. 
when  bill  or  statement  consists  of  more  than  fifty  leaves  it  must 

be  bound  under  the  direction  of  the  clerk  of  the  supreme  court, 

42. 
clerk  of  the  supreme  court  may  prepare  and  attach  index  to  the 

bill  or  statement,  42. 


T 

Time. 

See  Filing  of  the  Bill  or  Statement.  See,  also,  Service  of  the 
Bill  or  Statement;  Certification  of  the  Bill  or  Statement; 
Amendments. 

Transcripts. 

transcripts  which  are  required  to  be  certified  to  a  superior  court 
on  the  removal  of  a  cause  thereto  from  an  inferior  tribunal 
become  a  part  of  the  record  when  filed,  and  should  not,  there- 
fore, be  embodied  in  the  bill  or  statement,  46. 

depositions  and  other  written  evidence  on  file  when  appropriately 
referred  to  in  the  bill  or  statement  may,  it  seems,  be  attached 
to  the  transcript  on  appeal,  45. 


INDEX.  305 

[References  are  to  Sections.] 
Transcripts — Continued. 

but  depositions  and  other  written  evidence  on  file  which  is  not 
already  a  part  of  the  record  cannot  be  embodied  in  the  tran- 
Bcript  on  appeal,  45. 

records  of  other  causes  used  as  evidence  must,  when  necessary  to 
the  consideration  of  a  cause  on  appeal,  be  embodied  in  the 
bill  or  statement,  44. 


V 

Verdicts. 

verdicts,   general   or  special,   become   a  part  of  the  record  when 
filed,  and  should   not,   therefore,  be   embodied  in  the   bill  or 

statement,  46. 


w 

What  the  Bill  or  Statement  Should  Contain. 

the  bill  or  statement  should  embody  only  material  matters  occurring 
in  the  cause  and  not  already  a  part  of  the  record,  44. 

the  bill  of  exceptions  properly  embodies  only  oral  rulings,  together 
with  such  facts,  matters  and  proceedings  aa  are  material  to  a 
consideration  thereof  on  appeal,  and  not  already  a  part  of 
the  record,  40. 

the  statement  of  facts  must  embody  at  least  facts,  matters  and 
proceedings  which  are  not  already  a  part  of  the  record,  and 
which  directly  relate  to  a  ruling  or  rulings  which  are  already 
a  part  of  the  record,  and  may,  and  usually  does,  embody,  in 
addition  to  this,  all  that  a  bill  of  exceptions  properly  em- 
bodies, 40. 

Illustrations  of  what  the  bill  or  statement  should  contain: 

oral  stipulations,  44,  46. 

records  in  other  causes  when  material,  44. 

all  facts  showing  misconduct  of  counsel,  44. 

oral  admissions  where  judgment  is  rendered  on  pleadings,  44. 

affidavits,  44. 

oral  instructions,  44. 

depositions  and  other  written  evidence  on  file,  except  affidavits 
which  have  been  made  parts  of  motions,  and  excepting  evidence 
which  has  been  returned  into  court  by  referees  or  commissioners 
with  their  reporte,  are  not  already  a  part  of  the  record,  and 
should  therefore  be  embodied  in  the  bill  or  statement,  44,  45. 
20 


306  INDEX. 

[Reference!  are  to  Sections.] 

What  the  Bill  or  Statement  Should  Contain — Continued. 

affidavits  which  have  been  made  parts  of  written  motions,  and  evi- 
dence returned  into  court  by  referees  or  commissioners  with 
their  reports  become,  when  filed,  a  part  of  the  record,  and 
need  not,  therefore,  be  embodied  in  the  bill  or  statement,  44. 

the  testimony  and  other  evidence  must,  however,  be  returned  into 
court  with  their  reports  by  the  referees  or  commissioners,  for  if 
transcribed  and  filed  by  one  of  the  parties,  it  is  not  a  part  of 
the  record,  and  in  such  a  case  must  be  embodied  in  the  bill  or 
statement,  44. 

all  material  oral  evidence,  44. 

all  facts  showing  demonstrations  of  approval  calculated  to  influ- 
ence the  jury,  44. 

improper  argument  of  counsel,  44. 

all  facts  connected  with  the  entry  of  a  judgment  in  excess  of  the 
verdict,  44. 

opening  statement  of  counsel,  44. 

all  nonrecord  matters  which  were  considered  by  the  court  on  ren- 
dering judgment,  44. 

rules  of  practice  of  superior  courts,  44. 

record  evidence  which  has  been  excluded,  44. 

in  supplemental  proceedings  the  issuance  of  execution  when  the 
fact  is  material  and  does  not  otherwise  appear  of  record,  44. 

when  motion  for  default  is  refused,  the  fact  that  there  was  no 
opposition  thereto  when  material,  44. 

the  fact  that  no  application  was  made  for  appointment  of  guardian 
ad  litem  when  the  appointment  is  questioned,  and  such  fact 
is  material,  44. 

the  nonrecord  showing  made  on  motion  for  new  trial  which  has 
been  overruled,  44. 

the  nonrecord  showing  made  on  application  for  provision  for  the 
support  of  children  which  has  been  refused,  44. 

letters  and  their  contents,  when  material,  44. 

all  material  nonrecord  matters  relating  to  the  allowance  of  a  cost 
bill  which  is  objected  to,  44. 

the  evidence  when  sufficiency  of  complaint  is  challenged  in  the 
supreme  court,  and  evidence  was  introduced  in  the  lower  court, 
44. 

What  must  not  be  Embodied  in  the  Bill  or  Statement. 

immaterial  matters,  and  matters  which  become  a  part  of  the  rec- 
ord when  filed,  as  well  as  matters  which  did  not  occur  in  the 
cause,  46. 


INDEX.  307 

[Reference!  are  to  Sections.] 
What  must  not  be  Embodied  in  the  Bill  or  Statement— Continued. 

Illustrations  of  what  must  not  be  embodied  in  the  bill  or  statement: 

the  summons,  46. 

pleadings,  46. 

reports  of  referees  or  commissioners  with  the  testimony  and  other 
evidence  returned  into  court  therewith  become  a  part  of  the 
record  when  filed  by  the  referees  or  commissioners,  and  should 
not,  therefore,  in  such  a  case,  be  embodied  in  the  bill  or  state- 
ment, 46. 

the  testimony  and  other  evidence  must,  however,  be  returned  into 
court  with  his  report  by  the  referee  or  commissioner,  for  if 
transcribed  and  filed  by  one  of  the  parties,  it  is  not  a  part  of 
the  record,  and  in  such  a  case  must  be  embodied  in  the  bill  or 
statement,  46. 

findings  of  fact  and  conclusions  of  law,  46. 

all  charges  to  a  jury  made  wholly  in  writing,  46. 

all  instructions  requested  in  writing  to  be  given  as  part  of  a  charge, 
46. 

all  verdicts,  general  or  special,  46. 

all  rulings  or  decisions  embodied  in  a  written  judgment,  order  or 
journal  entry  in  the  cause,  together  with  all  exceptions,  if 
any,  taken  to  any  thereof,  46. 

on  appeal  in  consolidated  cases  facts,  matters  and  proceedings 
relating  to  the  cause  with  which  the  appeal  is  not  con- 
cerned, 46. 

all  facts,  matters  and  proceedings  which  did  not  occur  in  the 
cause,  46. 

exceptions  to  the  report  of  a  referee  or  commissioner,  or  to  find- 
ings of  fact  or  conclusions  of  law  which  are  duly  noted  in 
the  margin  or  at  the  foot  of  the  report  or  decision,  are  already 
a  part  of  the  record,  and  should  not  be  embodied  in  the  bill  or 
statement,  4,  46. 

exceptions  which  are  noted  in  the  margin  or  at  the  foot  of  the 
refusal  to  make  requested  findings  and  conclusions,  46. 

•written  exceptions  to  the  report  of  a  referee  or  commissioner,  or 
to  findings  of  fact  or  conclusions  of  law,  4,  46. 

written  exceptions  to  the  refusal  to  make  requested  findings  of 
fact  and  conclusions  of  law,  46. 

all  files  of  the  superior  court  in  the  cause,  including  reports  of 
referees  or  commissioners  with  the  testimony  and  other  evi- 
dence returned  into  court  therewith  by  the  referees  or  com- 
missioners, and  affidavits  which  have  been  made  parts  of 
motions,  but  excluding  all  other  written  evidence  on  file,  46. 

all  files  relating  to  appellate  proceedings,  4$. 


308  INDEX. 

[References  are  to  Sections.] 

What  must  not  be  Embodied  in  the  Bill  or  Statement — Continued, 
transcripts  which  are  required  to  be  certified  to  a  superior  court 
on  the  removal  of  a  cause  thereto  from  an  inferior  tribunal, 
46. 

requested  findings  and  conclusions  which  have  been  refused,  46. 
proofs  of  service,  46. 
written  stipulations,  46. 
written  notices,  46. 
written  motions,  46. 

affidavits  when  made  parts  of  written  motions,  46. 
See,  also,  Preparation  of  the  Bill  or  Statement. 


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